author: MOORE, J. BROWN, CHIEF JUDGE,

text:
    William A. KEATY, Sr., Plaintiff-Appellee v. RPM INTERNATIONAL, INC., et al., Defendant-Appellants
    No. 51,019-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered October 21, 2016.

      LISKOW & LEWIS, By: Thomas P. Diaz, Lacey E. Rochester, Brian W. Ca-pell, Counsel for Appellants
    KEATY & TILLY, LLC, By: William A. Keaty, II, John W. Tilly, Counsel for Ap-pellee
    Before BROWN, MOORE, LOLLEY PITMAN and STONE, JJ.
   MOORE, J.

h RPM International Inc. appeals a default judgment that ordered it to pay damages, interest and an attorney fee for an allegedly defective wood sealant product, Rust-Oleum Restore®, that was purchased and used by Dr. William A. Keaty Sr. RPM contends that the record does not make a prima facie case that it (RPM) manufactured the product, only that its subsidiary corporation, Rust-Oleum, did. We reverse and remand.

Dr. Keaty, a pediatric dentist, bought a large quantity of Rust-Oleum Restore® in July 2013 to seal the elaborate, two-story wood deck of his camp house on Pecan Island, in Vermilion Parish. He hired three hands who worked about two months prepping and sealing the deck, using exclusively Rust-Oleum products and following all directions. In May 2014, however, Dr. Keaty noticed the sealant was peeling, cracking and flaking; all his attempts to remedy the situation made it worse. He emailed the Rust-Oleum Products Support Group and, on July 28, 2014, someone named Gina Bonofiglio, with Rust-Oleum Corporation, replied that if he would send her copies of his sales receipts, “we would be able to refund the cost of this product.” He sent his information but never heard another word from Ms. Bonofiglio or Rust-Oleum.

Dr. Keaty filed this suit on May 4, 2015, naming as defendants “RPM International Inc. d/b/a Rustoleum” and its unknown insurer. Long-Arm service was mailed to RPM’s registered agent, Corporation Service Co., in Wilmington, Delaware; someone signed the “green card” and it was returned to counsel on May 18. When no answer was filed, Dr. Keaty moved for preliminary default on July 13, and moved to confirm on August 3. |2At the confirmation hearing, on August 24, Dr. Keaty testified to all the facts outlined above. He also filed an affidavit itemizing his damages, a total of $24,467.11, a certificate showing legal interest of $213.63, photos of empty cans of the Restore®, photos of the deck itself, and printouts of the emails he sent (and the one he received) from Rust-Oleum. One of his workers also testified, confirming that they used exclusively Rust-Oleum products and strictly followed all directions.

The district court found this sufficient to make a prima facie case and confirmed the default. The court later signed a judgment ordering RPM to pay Dr. Keating $24,367.11 in damages, $213.67 in interest and $3,500 in attorney fees.

RPM filed this motion for suspen-sive appeal. It designated one assignment of error: the court erred in confirming the default because Dr. Keaty failed to make a prima facie case that RPM was the manufacturer of the allegedly defective product and, in fact, submitted evidence that some other corporation made it. It contends that every bit of evidence submitted by Dr. Keaty — the emails, photos, testimony — refers to Rust-Oleum, but no evidence showed how RPM was connected to the product. RPM concedes that it is the parent company of Rust-Oleum, and Rust-Oleum is its subsidiary, but cites the “black-letter Louisiana law” that a parent corporation is a legal entity distinct from its subsidiary and not liable for any debt or liability of its subsidiary, Bujol v. Entergy Servs. Inc., 2003-0492 (La. 5/25/04), 922 So.2d 1113. It argues the case is strikingly similar to Eddie’s Hardware Inc. v. Rago, 320 So.2d 276 (La. App. 4 Cir. 1975), 1 swhich held that the party seeking to confirm a default must “produce proof of the claim against the party sued.” Specifically, it urges that Dr. Keaty supplied no evidence that (1) RPM manufactured Restore®, (2) RPM was “doing business as” Rust-Oleum, or (3) RPM’s corporate separateness should be disregarded to hold it liable for Rust-Oleum Corp.’s separate debts.

Dr. Keaty argues in brief, “The “wording on the container also stated it was made by RPM International.” He relates that he spent months trying to resolve the claim without litigation, had to file suit, properly served RPM by Long-Arm, still got no response whatsoever, took a preliminary default and, finally, confirmed it with sufficient evidence; only after judgment was rendered, and near the end of appellate delays, did RPM finally appear to argue it was the wrong defendant. He contends that if the defense is “wrong defendant,” RPM simply failed to raise it in the trial court. He argues that Eddie’s Hardware, “an obscure 40-year-old case from the Fourth Circuit,” is inapposite because it ultimately found only that the plaintiffs affidavit was insufficient. He concludes that under the manifest error rule, Cole v. State, 2001-2123 (La. 9/4/02), 825 So.2d 1134, no reasonable factfinder could find that anybody but RPM was the manufacturer of Restore®.

A corporation is a legal entity distinct from its shareholders. Buckeye Cotton Oil Co. v. Amrhein, 168 La. 139, 121 So. 602 (1929). The same principle applies where one corporation wholly owns another. Bujol v. Entergy Servs., supra, citing Joiner v. Ryder Sys. Inc., 966 F.Supp. 1478 (C.D. Ill. 1996). “While generally a parent corporation, by virtue of its ownership interest, has the right, power, and ability to control its subsidiary, a parent corporation generally has no duty to control the actions of its Lsubsidiary and thus no liability for a failure to control the actions of its subsidiary.” Id. Louisiana courts have declared that the strong policy of Louisiana is to favor the recognition of the corporation’s separate existence, so that veil-piercing is an extraordinary remedy, to be granted only rarely. Id. citing Glenn G. Morris & Wendell H. Holmes, Business Organizations (8 La. Civ. Law Treatise), § 32.02 (1999).

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case and that is admitted on the record prior to confirmation. La. C. C. P. art. 1702 A. A prima facie case is established when the plaintiff proves the essential allegations of the petition with competent evidence to the same extent as if each allegation had been specifically denied. Power Marketing Direct Inc. v. Foster, 2005-2023 (La. 9/6/06), 938 So.2d 662; Spencer v. James, 42,168 (La.App. 2 Cir. 5/9/07), 955 So.2d 1287. On review, an appellate court is restricted to determining the sufficiency of the evidence offered in support of the default judgment. Arias v. Stolthaven New Orleans LLC, 2008-1111 (La. 5/5/09), 9 So.3d 815; Spencer v. James, supra. The determination is factual and is governed by the manifest error standard of review. Arias v. Stolthaven New Orleans, supra.

A plaintiff confirming a default judgment must produce proof of the claim against the pax-ty sued. Eddie’s Hardware Inc. v. Rago, supra; A. Baldwin & Co. v. B & R Fences Inc., 365 So.2d 943 (La. App. 4 Cir. 1978). The elements of a prima facie case are established with competent evidence, as fully as though each of the allegations of the petition were denied by the defendant. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254 (La. 1993). The rules of evidence apply to a confirmation of default. La. C.E. art. 1101 A. Even though there is no opponent, a plaintiff is inquired to follow Lthe rales of evidence. Arias v. Stolthaven New Orleans, supra. Inadmissible evidence, except as specifically provided by law, may not be used to support a default judgment even though it was not objected to because the defendant was not present. Id.

In Eddie’s Hardware, supra, the plaintiff confirmed a default judgment on an open account against a person named O.J. Rago, who had signed three receipts on behalf of an entity called R & M Delivery. However, the Fourth Circuit vacated the judgment because none of the evidence in support of the default provided “any basis for holding Rago responsible for the debts of R & M Delivery.” In Greenwood v. Pellissier, 96-4 (La.App. 5 Cir. 4/30/96), 672 So.2d 1166, writ denied, 96-1572 (La. 9/27/96), 679 So.2d 1347, and White v. Esplanade Props. Corp., 95-571 (La.App. 5 Cir. 11/28/95), 665 So.2d 579, the plaintiffs obtained default judgments alleging premises liability against the lessors of commei’-cial properties. However, the Fifth Circuit vacated both judgments because the evidence offered in suppox-t of the defaults did not show that the lessors exercised control over the lessees or assumed a duty for the safety of the leased premises. In short, “proof sufficient to establish a prima facie case” must show how the party cast in judgment is responsible for the plaintiffs damages.

Most to the point, in Moreau v. RPM Inc., 20 A.D.3d 456, 799 N.Y.S.2d 113, (2 Dep. 2005), the plaintiff obtained a summary judgment against RPM, the appellant herein, for personal injury caused by the use of Rust-Oleum paint. However, the Appellate Division reversed for failure of proof in that “plaintiff mei-ely submitted evidence that RPM was the parent company of Rust-Oleum. Mei-e ownership by a parent company of a subsidiary that is subject to pei’sonal jurisdiction is insufficient to establish | (-jurisdiction over the parent.” Although Moreau involved a summary judgment, the analysis of the evidence was critical to establishing RPM’s liability for Rust-Oleum’s debts.

On close examination, we are constrained to find that the record evidence does not make a prima facie case against RPM. The photos, emails and testimony all establish that Restore® is a product of Rust-Oleum Corporation, and RPM concedes it is Rust-Oleum’s parent corporation, but there is not one scintilla of evidence that RPM had a duty to control the acts of its subsidiary and was thus liable for its debts. Bujol v. Entergy Servs., supra. Dr. Keaty alleges in brief that the “wording on the container also stated that it was made by RPM,” but no Restore® container, paint can or legible photo of the label thereon was introduced in support of the default. In the absence of such proof, the default judgment must be reversed and the case remanded for further proceedings.

We are sensitive to the difficulty inherent in obtaining judgment against an uncooperative defendant. In Eddie’s Hardware v. Rago, supra, the court noted, “While it appears from the record that defendant was served with the petition and had the opportunity to deny the allegations” that he was somehow connected to the buyer, R & M Delivery, and thus liable for that entity’s debt, the plaintiffs burden in confirming a default is to make a prima facie case against the party sued. The plaintiffs encountered the same obstacles in their suits against the lessors in White v. Esplanade Props. Corp. and Greenwood v. Pellissier, supra. All the defendant had to do was file a general denial, join the issue, and provoke a trial, wherein the court could make reasonable factual findings on contested evidence. However, the law clearly places the burden on the plaintiff, in a confirmation of default, to 17make a prima facie case, La. C. C. P. art. 1702 A, and in a suit against a parent company for the debt of its subsidiary, to show actual control over the acts of the subsidiary, Bujol v. Entergy Servs., supra. We find no record evidence to satisfy either of these burdens.

The judgment is reversed and the case remanded to the district court for further proceedings. All costs are to be paid by Dr. William A. Keaty Sr.

REVERSED AND REMANDED.

BROWN, C.J., dissents with written reasons.

BROWN, CHIEF JUDGE,

dissents.

I tin this case, RPM Internationál, Inc., d/b/a Rust-Oleum was sued and properly served. Neither RPM nor Rust-Oleum filed an answer. After a default judgment, RPM appealed. In the appeal, RPM stated that they are, in fact, the parent corporation and own Rust-Oleum. On appeal, RPM claims that the evidence presented to confirm the default did not show that RPM manufactured the faulty product. They claim it was Rust-Oleum’s product and even though they own Rust-Oleum they must be treated as separate. RPM is basically offering evidence in this court. It is RPM that is now attempting to put on evidence in this court. I must respectfully dissent.

      . On April 6, the supreme court transferred the appeal to this court because all judges of the Third Circuit recused themselves. Dr. Keaty’s wife, Hon. Phyllis Keaty, is a judge on the Third Circuit.


source: Caselaw Access Project

author: GUIDRY, J. CHUTZ, J.,

license: Public Domain

text:
    James ROBINSON v. The BOARD OF SUPERVISORS FOR THE UNIVERSITY OF LOUISIANA SYSTEM and Joey Sturm, Individually and in His Official Capacity as Chief of Police for the University of Louisiana at Lafayette
    NUMBER 2015 CA 1707
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: November 04, 2016

      G. Karl Bernard, New Orleans, LA, Plaintiff-Appellee, James Robinson
    Jeff Landry, Attorney General, Andrew Blanchfield, Special Assistant Attorney General, Baton Rouge, LA, Counsel for Defendant-Appellant, Board of Supervisors for the University of Louisiana System
    BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
   GUIDRY, J.

[ ^Defendant-appellant, the Board of Supervisors for the University of Louisiana System (Board of Supervisors), appeals the trial court’s judgment in favor of plaintiff-appellee, James Robinson, awarding damages in accordance with a jury’s verdict finding that the University of Louisiana at Lafayette Police Department (ULLPD) discriminated against Robinson based on age. For the reasons that follow, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

In 1971, Robinson was hired to work in security at the University of Louisiana at Lafayette (ULL). Shortly after, the security department was transformed into the campus police department. In 1999, Police Chief Joey Sturm delegated the responsibility of the ULLPD evidence custodian to Robinson, whereupon Robinson had exclusive access to and responsibility for the contents of the evidence room. Robinson continued to work his way up the ranks and was promoted by Chief Sturm to ULLPD Captain, the second highest rank in the chain of command.

In 2002, Chief Sturm left ULLPD to work elsewhere. During that time, others served as Chief, including Robinson who held the position of Interim Chief of ULLPD on three separate occasions. Chief Sturm returned to ULLPD as chief of police in 2009. In October/November of 2010, under Chief Sturm’s leadership, ULLPD underwent an organizational and policing policy change. In conformity with the State’s Civil Service requirements, the former ULLPD offices were modified. Most employees received an increase in salary and increase in rank, including Robinson. Effective October 27, 2010, continuing as the second-in-command, Robinson, who was sixty-six years old, began service at ULLPD as a | ..¡Police Major A. Chief Sturm was forty-one years old when the reorganization took place. It is undisputed that concomitantly with the Civil Service reorganization, ULLPD went from a community-based policing operation to an intelligence-led policing operation. None of the ULLPD employees, including Robinson, received additional training for implementation of the new policing policy or in effective means of communication, particularly computer use.

Additionally, as part of this organizational and policy change, Robinson was to transfer custodian duties of the evidence room to Officer Billy Abrams. In November 2010, the building that housed the ULLPD evidence room was scheduled for significant renovations and, therefore, all the evidence and property had to be moved from one facility to another. In December 2010, Robinson was directed by Chief Sturm to perform an evidence audit of the contents of the evidence room prior to the transfer of custodial duties to Officer Abrams and prior to the transfer of evidence to the new facility. Robinson admittedly did not know how to perform an evidence audit and selected Officer Daniel Mendoza to assist him with the transfer.

By early 2011, all of the evidence and other secured property were transferred to a new building. In March 2011, Robinson received his first ever unsatisfactory evaluation, and the evidence custodian duties for which he had been responsible since 1999 were ultimately turned over to Officer Abrams. On March 15, 2011, Chief Sturm recommended disciplinary action against the 39-year ULLPD Major for failing to follow direct orders related to the evidence room audit and the transfer and transition of his responsibility as evidence custodian to Officer Abrams.

| thereafter, on May 9, 2011, Robinson executed a form certifying his intent to retire effective July 15, 2011. After Robinson indicated his intent to retire, the proposed disciplinary action was rescinded.

In the remaining months of his service, Robinson was subjected to an internal affairs investigation over alleged missing evidence that was subsequently located. He was also reassigned to patrol the New Iberia Research Center (NIRC), where the university houses primates. It is undisputed that this assignment was not in conformity with his job description as a Police Major A, although Robinson continued to collect the same salary. Robinson subsequently retired on July 15, 2011.

On August 20, 2012, Robinson filed a petition for damages, averring that the Board of Supervisors was responsible for age-based employment discrimination by ULLPD in violation of both federal and state law. A three-day trial was held before a jury. The jury returned a verdict finding that the Board of Supervisors was liable for ULLPD’s age-based discrimination against Robinson and awarded Robinson substantial damages. The trial court signed a judgment in conformity with the jury’s verdict and also entered an award of attorney’s fees in favor of Robinson. This appeal followed.

DISCUSSION

. Both the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and Louisiana’s Age Discrimination Employment Act (LADEA), La. R.S. 23:311-314, make it unlawful for an employer to discharge any individual or otherwise discriminate against any individual with respect to his compensation or his terms, conditions, or privileges of employment because of age. 29 U.S.C. § 623; La. R.S. 23:312(A)(1). Because Louisiana’s age ^discrimination statute is nearly identical to the' federal statute, Louisiana courts have traditionally used federal case law for guidance. LaBove v. Raftery, 00-1394, 00-1423, p. 9 (La. 11/28/01), 802 So.2d 566, 573.

Under both federal and state law, in the absence of direct proof of discrimination, the plaintiff in an age discrimination case must follow the three-step burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Wyvill v. United Companies Life Insurance Co., 212 F.3d 296, 301 (5th Cir. 2000). Under the McDonnell Douglas framework, the plaintiff claiming age discrimination must first establish a prima facie case of discrimination. To establish a prima facie case of age discrimination, the plaintiff must show that (1) he was disr charged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or Hi) otherwise discharged because of his age. Eastin v. Entergy Corp., 09-293, p. 34 (La. App. 5th Cir. 7/27/10), 42 So.3d 1163, 1185-86; Berquist v. Washington Mutual Bank, 500 F.3d 344, 349 (5th Cir. 2007); see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000). Once established, the prima facie case raises an inference of unlawful discrimination. See Eastin, 09-293 at p. 34, 42 So.3d at 1186.

If the plaintiff establishes a prima facie case, the defendant must then articulate a legitimate, non-discriminatory reason for its action. The defendant’s burden, in rebutting a prima facie case, is one of production, not persuasion. Eastin, 09-293 at p. 34, 42 So.3d at 1186.

If the defendant articulates such a reason, then the burden shifts back to the plaintiff to show by a preponderance of the evidence that the defendant’s reason is mere pretext for discrimination, Eastin, 09-293 at p. 32, 42 So.3d at 1185-86. This may be accomplished directly, by showing that a discriminatory reason more than likely motivated the employer, or indirectly, by showing that the asserted reason is unworthy of credence. Eastin, 09-293 at p. 35, 42 So.3d at 1186.

The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff, who must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. Eastin, 09-293 at p. 28 and 35, 42 So.3d at 1182 and 1186; see also Gross v. FBL Financial Services, Inc., 557 U.S. 167, 180, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009). And while a factfinder’s rejection of the employer’s legitimate, nondiscriminatory reason for its action may not compel judgment for the plaintiff, the factfinder’s disbelief of the reasons put forward by the defendant, together with the elements of-a prima facie case, may permit the trier of fact to infer the ultimate fact of intentional discrimination. See Reeves, 530 U.S. at 147-148, 120 S.Ct. at 2108-2109.

As depicted above, the determination of whether a plaintiff has established age-based discrimination is necessarily a fact-intensive inquiry. It is well-settled that a court of appeal may not set aside a jury’s finding of fact unless it is clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989); Stobart v. State, Department Of Transportation and Development, 617 So.2d 880, 882 (La. 1993). Where -there is conflict in the testimony,- reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, 549 So.2d at 844. If the jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the frier of fact, it would have weighed; the evidence differently. Rosell, 549 So.2d at 844. Where there, are two Impermissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 844.

Further, when findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, 549 So.2d at 844. Where 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, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. Rosell, 549 So.2d at 844-845. However, where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 845.

Prima Facie Case

After reviewing the record in the instant case, we find no error in the jury’s determination that Robinson established a pri-ma face case of age discrimination. It is undisputed that at the time of his retirement, Robinson was sixty-six years of age and therefore, within the protected class. See LaBove, 00-1394 at p. 9, 802 So.2d at 573.

Additionally, the record demonstrates that at the time of his retirement, Robinson had worked for ULLPD for forty-years. Dux-ing that time, he was promoted to Captain and to Major, where he served as second-in-command to the Chief. Robinson also served as the sole custodian in charge of the ULLPD evidence room for approximately eleven years. Robinson had consistently received outstanding job performance evaluations, and according to Lieutenant [sMichelIe Broussard, he was the “go to” person at ULLPD. With regard to the evidence room, Lieutenant Michael Louviere testified that Robinson had attended two certifying classes for evidence training, and that during his tenure as evidence custodian, ULLPD never had a problem producing evidence. Thus, given Robinson’s tenure, experience, and positive performance evaluations with ULLPD, the record supports that he was qualified for the position of Major.

Further, Robinson presented evidence demonstrating that he was constructively discharged from his position. In order to state a discrimination claim based on constructive discharge, the plaintiff must establish that the employer created working conditions so intolerable that a reasonable employee would feel compelled to resign. Taylor v. Oakbourne Country Club, 02-1177, p. 8 (La.App. 3 Cir. 5/14/03), 846 So.2d 959, 965, writ denied, 03-2025 (La. 11/7/03), 857 So.2d 494; see also Bannister v. Department of Streets, 95-0404, p. 11 (La. 1/16/96), 666 So.2d 641, 648. Whether an employee would feel forced to resign is case and fact specific; however, courts consider the following aggravating factors relevant: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer; or (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not. Haley v. Alliance Compressor LLC, 391 F.3d 644, 649-650 (5th Cir. 2004).

As noted above, Chief Sturm initiated organizational changes at ULLPD in late 2010. As part of this reorganization, Robinson’s classification changed from Captain to Major. However, his rank as second-in-command remained unchanged. Robinson testified, and Chief Sturm acknowledged, that prior to the reorganization, Robinson had an unblemished work history. However, after the reorganization, Robinson received several verbal and written reprimands from Chief Sturm for | ¡failure to perform tasks that Robinson had admitted not knowing how to perform and for which, according to Robinson, he was denied assistance in completing. Rather than provide Robinson with assistance in completing an audit that had never been performed by anyone at ULLPD, Robinson and Officer Mendoza stated that Chief Sturm yelled at Robinson, told him he was incompetent, and called him names.

According to Sergeant Tony Jonhson, although Robinson was second-in-command, Chief Sturm rarely interacted with Robinson. Sergeant Johnson and Lieutenant Broussard stated that Chief Sturm relied more on Captain Larry Zerangue, a lower ranking officer. Chief Sturm acknowledged that command staff participated in meetings regarding the reorganization and reallocation of ULLPD and its change in policies. However, Sergeant Johnson stated that Robinson, who was second-in-command and a part of Chief Sturm’s command staff, was excluded from command staff meetings. Additionally, Sergeant Johnson and Robinson stated that Robinson was not afforded the same privileges as other members of command staff, including use of a ULLPD credit card or issuance of an iPhone or iPad.

Sergeant Johnson also stated that beginning in January 2011, Chief Sturm started relieving Robinson of his duties. First, Robinson was relieved of his duty as patrol commander in January 2011, and Sergeant Johnson was told not to report anything to Robinson anymore. Then, as acknowledged by Chief Sturm, by the time the evidence room transfer was completed in March 2011, Robinson had been relieved of his duties as evidence custodian. Shortly thereafter, Robinson was relieved of his remaining duties. According to Robinson, he was forced to sign retirement papers on May 9, 2011, due the foregoing actions by Chief Sturm by not only eliminating his job responsibilities and his role in ULLPD but also in engaging in a pattern of harassment regarding the transfer of evidence.

ImFinally, Robinson produced evidence that he was replaced by someone younger. As noted above, Robinson was sixty-six years of age when he retired from ULLPD. Captain Zerangue, who was approximately forty years old at the time, assumed Robinson’s position as Major when Robinson retired. Additionally, Chief Sturm testified that other members of his command staff were in their early to mid-forties, with one employee, Lieutenant Lavergne in his late forties. Age differences of ten or more years have generally been held to be sufficiently substantial to meet the requirement of the fourth prong of an age discrimination prima facie case. Eastin, 09-293 at p. 34, 42 So.3d at 1186.

Defendant’s Proffered Legitimate, NonDiscriminatory Reason

At trial, the defendant asserted that 1) there was no adverse employment action, i.e. no constructive discharge, because Robinson voluntarily chose to retire and 2) even if there was an adverse employment action, it was not because of Robinson’s age but was because of his continued insubordination.

Charlene Hamilton, Human Resources Manager for ULL, stated that during a March 2011 meeting with Robinson regarding his proposed suspension, Robinson told her that he was going to retire effective July 15, 2011. According to Hamilton, it was based upon this assertion that the proposed disciplinary action was subsequently rescinded. Furthermore, Hamilton stated that Robinson had told her several times before the March 2011 meeting that he was contemplating retirement, because he was frustrated with some of his duties. Lieutenant Louviere also stated that Robinson had said for years that he was planning on retiring.

Chief Sturm also testified at trial, stating that he promoted Robinson twice, once in 2002 to Captain and once in 2010 to Major. According to Chief Sturm, while the promotion came about as a result of reorganization in ULLPD so as to be in line with state civil service requirements, he could have chosen anyone else for the position of Major, including advertising outside of ULLPD. However, Chief | uSturm stated that he chose Robinson, because he had worked with him for years and felt that he deserved the position. Chief Sturm also stated that he put Robinson in charge of the evidence room in 1999-2000. Chief Sturm noted that Robinson’s promotion to Major also involved a change in job duties. Chief Sturm stated that when he talked to Robinson about the reorganization of ULLPD and/or the reallocation of job responsibilities, he told Robinson that his duties would change, i.e. he would no longer be handling tickets, he would no longer be picking up ticket books in Baton Rouge, and his evidence room duties would be transferred to a lower ranking officer. Accordingly, when the evidence room had to be moved to a new location in 2010, Chief Sturm decided at that time to also transition custody of the evidence room to Officer Abrams.

According to Chief Sturm, it was at this time that things began to change. Robinson had selected Officer Mendoza to assist him with the transfer of evidence to the new location. Chief Sturm stated that shortly thereafter, Officer Mendoza expressed concern to him that Robinson was going to throw away all of the evidence except for guns, drugs, and money. Based on this conversation with Officer Mendoza, Chief Sturm had a discussion with Robinson, wherein he discussed the procedure to be followed in transferring evidence to the new location. Chief Sturm followed up this discussion with an email dated December 14, 2010, detailing the procedure to be followed in conducting an audit of all of the evidence and in transferring the evidence to the new location. Particularly, Chief Sturm directed that Robinson perform the detailed audit as instructed prior to the transfer of any evidence to the new location, and that he acknowledge receipt of the email and provide him with updates on the project’s progress in writing. When Robinson failed to respond to the Chiefs email as requested, Chief Sturm sent a written reprimand to Robinson on December 15, 2010, for Robinson’s failure to follow directives.

| ^Thereafter, on February 2, 2011, Chief Sturm again forwarded his December 14, 2010 email to Robinson, noting that as of that date, Robinson had still not followed direction nor taken charge of the transfer of evidence. On March 1, 2011, Chief Sturm sent another letter to Robinson, detailing Robinson’s insubordination for failing to begin the audit and transfer process after being given a direct order. Robinson was also, at that time, relieved of his evidence room duties and was warned that if he failed to have new locks installed and obtain new alarm codes for the evidence room, he would be met with harsh discipline. Despite these repeated requests and warning, Chief Sturm stated that Robinson still failed to complete the task assigned. Consequently, on March 15, 2011, Chief Sturm wrote a letter to the Vice President for Student Affairs at ULL requesting a five-day suspension of Robinson for his failure to follow through on direct orders given by Chief Sturm on December 14, 2010, and March 1, 2011, and his repeated insubordination. According to Chief Sturm, Robinson had failed to do what he had been asked since December 2010, and the action taken against Robinson was an effort to improve his behavior.

Chief Sturm stated that ultimately, no action was ever taken against Robinson because he indicted his intent to retire in a March 2011 meeting with Hamilton. Following Robinson’s completion of retirement paperwork on May 9, 2011, Chief Sturm stated that he initiated an internal affairs investigation on May 12, 2011, after discovering that Robinson was in possession of evidence after being relieved of that responsibility, that he was improperly storing evidence in his office, and that an item of evidence, an iPhone, was missing. The investigation, conducted by Lieutenant Louviere, found substantiated conduct for unsatisfactory performance.

Thereafter, Chief Sturm stated that he transferred Robinson to NIRC in June 2011, because he needed an administrative position there. Despite the transfer, 11sRobinson retained the same rank and pay. Chief Sturm stated that there are other veteran/senior officers working at NIRC, and the transfer was not intended as a punishment.

Pretext for Discrimination

Robinson asserts that the defendant’s proffered legitimate, nondiscriminatory reasons were merely pretextual for several reasons. First, with regard to the voluntary nature of his retirement, Robinson stated that while he spoke with Hamilton in March 2011 and inquired as to whether he had enough years to retire, he did not indicate to her at that time that he wanted to retire. Rather, according to Robinson, he had planned on working for at least three more years due to recent family financial issues. Lieutenant Brous-sard also stated that she was aware that Robinson planned on working for several more years. However, due to the progressive elimination of job responsibilities, harassment, and exclusion of Robinson by Chief Sturm as detailed above, Robinson felt he that he was forced to retire as soon as he had his forty years on July 15, 2011.

Further, with regard to the defendant’s argument that any adverse employment action was not because of Robinson’s age but was because of his insubordination, defendant argued that because Chief Sturm had recently promoted Robinson, he would not turn around and take adverse action against him because of his age. However, contrary to defendant’s assertion, Robinson presented evidence that Robinson’s promotion to Major was not so much based on merit or choice by Chief Sturm but was the result of a department wide reorganization at ULLPD to conform with the state civil service requirements. As such, the reallocation was not particular to Robinson but was applicable to all employees within ULLPD, each receiving an increase in rank and pay as part of the reorganization. Further, while the position of Major may have been created by the 1 ^reorganization, Robinson’s status as second-in-command and, according to Robinson, general job responsibilities remained the same.

Additionally, with regard to the issue of auditing and transfer of evidence, Robinson presented contradictory evidence as to what prompted the request for the detailed audit procedure, the reasonableness thereof, and whether such request and/or criticism was an effort to mandate compliance with departmental policy or an effort to build a file on Robinson and force him to leave ULLPD. Contrary to Chief Sturm’s assertion, Sergeant Mendoza testified that he did not tell Chief Sturm that Robinson was going to throw away evidence. Rather, Sergeant Mendoza stated that he expressed his concern to Chief Sturm that some evidence was missing from bags and that he did not want to be held accountable for missing evidence or held responsible for the condition of the evidence room.

Further, Chief Sturm acknowledged in his testimony that he was aware of the deplorable condition of the evidence room, where paint was peeling off the walls and evidence and paper were strewn everywhere Additionally, the testimony at trial indicated that the presence of rats in the evidence room, who ate through evidence bags and sometimes ate evidence, was widely known by officers at ULLPD. Chief Sturm acknowledged that despite this condition, ULLPD had never had a problem producing evidence when requested.

Following Chief Sturm’s email to Robinson on December 14, 2010, directing Robinson to perform a detailed audit of the evidence room contents and to email confirmation of the request and status updates, Robinson stated that he went to speak with Chief Sturm. Robinson stated that he explained to Chief Sturm that he was having problems with his email and that he did not know how to perform the audit as requested, and he also asked for assistance. Despite the fact that no one at ULLPD had been asked to perform or had performed such an evidence audit, Robinson stated Chief Sturm responded by just looking at him, [^raising his voice, and denying any request for training or assistance. Furthermore, Robinson stated that Chief Sturm refused requests for equipment to facilitate the transfer of evidence.

Additionally, despite Chief Sturm’s timetable and directive in December 2010 requiring that no evidence be moved to the new location prior to completion of the audit, Captain Zerangue testified that he helped Officer Abrams transfer the evidence from the old evidence room to its new location in December 2010, stating that they had to quickly get the evidence out of the old evidence room due to construction in the building and that they moved the evidence to the new facility in one day. Additionally, Captain Zerangue stated that the auditing process had taken in excess of two years to complete and was still ongoing at the time of trial. Further, Officer Mendoza and Captain Zerangue also stated that at the time the evidence was moved in December 2010, they, along with Officer Abrams and several student officers, were in charge of the move and that Robinson had been already been relieved of his evidence custodian duties.

Finally, with regard to the internal affairs investigation and the transfer of Robinson to NIRC, both of which occurred after Robinson elected to retire, Lieutenant Louviere testified that during the course of the investigation, he remembered that he and Robinson had previously returned the alleged “missing” iPhone to its owner. Further, despite Chief Sturm’s assertion that Robinson’s transfer to NIRC was not intended as a punishment, Lieutenant Broussard, Officer Mendoza, and Sergeant Johnson stated they, as well as other lower ranking officers, perceived the transfer as a punishment.

After viewing the record in its entirety, we find that the jury had conflicting evidence before it and apparently did not find credible defendant’s explanation that Robinson voluntarily retired or that any adverse employment action taken against him was due to his insubordination. Accordingly, because the jury, with its ability 1lfito listen to live testimony, was in a better position to judge the credibility of the witnesses and the accounts of the events, we will not second guess their rejection of the defendant’s proffered explanation. See Russell v. McKinney Hospital Venture, 235 F.3d 219, 225 (5th Cir. 2000).

Further, finding no error in the jury’s rejection of defendant’s proffered explanation, and considering the evidence offered by Robinson in support of his prima facie case, we find that a rational factfinder could conclude that the action was discriminatory and therefore, find no error in the jury’s inference of discrimination by ULLPD on the basis of age. See Reeves, 530 U.S. at 147-148, 120 S.Ct. at 2108-2109.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to the Board of Supervisors for the University of Louisiana System.

AFFIRMED.

Chutz, dissents and assigns reasons.

CHUTZ, J.,

dissenting.

hi respectfully dissent with the majority’s opinion in this case. The evidence was simply insufficient to support the jury’s conclusion of liability under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, or the Louisiana’s Age Discrimination Employment Act (LA-DEA), La. R.S. 23:311-314; or the amount of its award of damages to plaintiff, James Robinson.

Under the ADEA or the LADEA, Robinson was first required to establish a pri-ma facie case of age discrimination. Initially, I question whether the record contains any competent evidence to support a finding that Robinson’s termination was involuntary, which is among the requisite elements of his initial prima facie burden. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Montgomery v. C & C Self Enterprises, Inc., 2010-706 (La.App. 3 Cir. 3/30/11), 62 So.3d 279, 281-82, writ denied, 2011-0873 (La. 6/3/11), 63 So.3d 1016 (setting forth as one of the elements a plaintiff must establish to support a prima facie claim a showing that his employment with the defendant was involuntarily terminated).

In concluding there was no manifest error with an implicit finding by the jury that Robinson established a prima facie showing of an involuntary termination, the majority relies only on Robinson’s self-serving testimony that he was forced to resign, despite the fact that he failed to show he was demoted; suffered a reduction in salary; was offered either an early retirement or a continuation of employment on terms less favorable than his former status. See Haley v. Alliance Compressor LLC, 391 F.3d 644, 649-650 (5th Cir. 2004). The evidence tending to suggest that Robinson’s job responsibilities were reduced and that he was reassigned to menial or degrading work occurred only after Robinson had voluntarily submitted his retirement. The record is devoid of evidence showing that Robinson was reassigned to work under a younger supervisor prior to his decision to retire. And while Chief Joey Strum’s response to Robinson’s inability to adapt to his new position as a second-in-command Major may have been perceived as badgering, harassing, or humiliating by Robinson, there is no evidence showing Chief Strum had an invidious intent to create or perpetuate intolerable conditions compelling Robinson’s resignation at the time that Robinson decided to submit his retirement papers.

Even assuming arguendo that the jury was not manifestly erroneous and, therefore, that Robinson showed his initial pri-ma facie case of age discrimination, the burden would have then shifted to the Board of Supervisors for the University of Louisiana System (Board of Supervisors) to articulate a legitimate, nondiscriminatory reason for the conduct of the University of Louisiana at Lafayette Police Department (ULLPD). See Montgomery, 62 So.3d at 279 (citing Beeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).

The record reflects that ULLPD had such a reason: ULLPD expected Robinson to change his manner of performing his job with both his promotion to Major and ULLPD’s shift from community policing to intelligence-led policing, and Robinson failed to meet ULLPD Chief Joey Sturm’s expectations. It was thereafter incumbent on Robinson to establish ULLPD’s proffered reason was merely pretextual, and that his discharge would not have occurred absent unlawful age discrimination. See Montgomery, 62 So.3d at 282

While the jury may have rejected the proffered reason offered by the Board of Supervisors, even when the employer’s proffered reason is unpersuasive, or |aobviously contrived, it does not necessarily establish that the plaintiffs assertion of age discrimination is correct. Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176-78, 129 S.Ct. 2343, 2350-51, 174 L.Ed.2d 119 (2009). Therefore, to prevail on his claim, a plaintiff must show that age motivated the employer’s decision. In other words, age must actually have played a role in the employer’s decision-making process and had a determinative influence on the outcome. Montgomery, 62 So.3d at 282 (relying on Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). Neither the ADEA nor LADEA was intended to transform the courts into personnel managers. These age-discrimination-in-employment acts cannot protect older employees from erroneous or even arbitrary personnel decisions. See Montgomery, 62 So.3d at 287.

Robinson urges that the jury’s implicit determination of age discrimination is supported by evidence of age-based comments, disparate treatment, and the building of a disciplinary file against him by Chief Sturm. But a close examination of the evidence and law relative to each of these bases does not support this conclusion by the jury.

In order for age-based comments to demonstrate discrimination, Robinson must have proven it was the decision-makers who stated the discriminatory comments that led to an involuntary termination. See Wyvill v. United Companies Life Ins. Co., 212 F.3d 296, 304 (5th Cir. 2000). The evidence presented to the jury shows Robinson proved only that “command staff,” all of whom were lower ranking than plaintiff and none of whom had decision-making authority over him, made age-based discriminatory comments once or twice. Robinson suggests that when Chief Sturm retened to ULLPD in 2009, the environment changed and age-based derogatory comments by subordinate officers showed that the Chief, who had decision making authority over him, discriminated against him. But this is also insufficient to establish age discrimination since it is the decision-makers’ Lderogatory comments that can reveal an employer’s discriminatory motives. There .is no evidence either linking age-based discriminatory comments to Chief Sturm or tending to show that decision-makers were aware of such comments and did nothing. Thus, there is no evidentiary support for an implicit finding by the jury that age-based comments demonstrated age discrimination toward Robinson by ULLPD.

To show disparate treatment, Robinson had to introduce evidence showing that ULLPD gave preferential treatment to younger employees under “nearly identical” circumstances to Robinson’s. See Wyvill, 212 F.3d at 304. The record fails to establish anyone in “nearly identical” circumstances to Robinson having been treated more favorably since there is nothing to show that someone younger than Robinson failed to perform a direct order from Chief Sturm and, after advising the Chief of his inability to comply, received a more favorable response from Chief Sturm. Without an evidentiary basis for the jury to conclude that Robinson had been treated differently by ULLPD than a younger person under nearly identical circumstances, - the jury erred in implicitly finding that Robinson proved age discrimination due to disparate treatment.

The act of maintaining/building disciplinary files on employees, without more, is not illegal age discrimination employment. In the absence of any nexus between a plaintiffs allegation of file building and his age, such assertions are insufficient to create an inference that plaintiff was fired on account of age. See Wyvill, 212 F.3d at 305-06. The first instance of the file building occurred when Robinson failed to adapt to the changes expected of him both as a result of the intelligence-based policing and as second-in-command under the new departmental policy. According to Robinson, none of his duties changed when he was promoted; and he articulated numerous discrete functions that he performed both before and after his promotion. But Chief Strum testified he expected Robinson to act as an assistant chief and the written job description attached to the title of Police Major A 1 sstated that 80% of Robinson’s new duties as the ULLPD Major were to oversee operational functions rather than to perform discrete functions. Although the jury may have correctly determined that Chief Sturm failed to communicate this new vision to Robinson, the job description provided to Robinson bears his signature evincing his notice of ULLPD’s new expectation of him. Even if Robinson’s termination was unfair, demonstrated a lack of compassion, or was wrong and unlawful that does not create a cause of action under the ADEA or the LADEA. See Williams v. Univ. Med. Ctr., 846 F.Supp. 508, 512-13 (S.D. Miss. 1994), aff’d, 46 F.3d 66 (5th Cir. 1995) (relying on Moore v. Eli Lilly & Co., 990 F.2d 812, 819 (5th Cir. 1993) and Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988)).

While it is evident the jury believed that Chief Sturm unfairly treated Robinson, that determination is insufficient to support the conclusion that ULLPD’s motive in building a file against him was based on age. An inability to adapt to a changing work environment is not inherently age-based conduct so as to support a finding of a discriminatory motive based on age. Robinson failed to provide evidence establishing a nexus between his allegation of file building by ULLPD and his age so as to support a finding by the jury of age discrimination.

The United States Supreme Court has held that after the presentation of all the evidence in an ADEA claim, the overall evidence ultimately must be sufficient for a jury to conclude that age discrimination— and age discrimination alone — was the true reason for the employment decision. See Gross, 557 at 176-78, 129 S.Ct. at 2350-51. A thorough review of the evidence in this case clearly shows that Robinson failed to establish age discrimination was the basis for his retirement; and he certainly failed to produce any proof that age discrimination by ULLPD was the sole ^motivation for his decision to submit his retirement papers. Thus, Robinson failed to prove entitlement to any relief under either the ADEA or the LADEA. The jury’s conclusion to the contrary was error.

Lastly, because there is a lack of a reasonable basis to support the amount of damages, I believe the majority errs in affirming the jury’s award of $367,918.00. Robinson did not assert entitlement to a general damage award. Likewise, he neither claimed damages for mental anguish nor offered any evidence to support such an award. Mindful that the jury was never charged with the elements of either general damages or a mental anguish award, its award was limited to a claim for loss of wages in this case. The most favorable evidence to support an award for loss of wages was Robinson’s testimony establishing that he earned $69,900.00 annually and that he had intended to work an additional three years but felt forced to retire. Even adjusting for merit increases, the jury’s award of $367,918.00 was excessive and should have been reduced. See Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La. 1976).

For these reasons, in my view, the law and evidence are insufficient to support, Robinson’s claim of unlawful discrimination based upon age. Thus, I disagree with the majority’s determination of liability. I further disagree with the majority decision insofar as it affirms the amount of damages since, even assuming that the evidence was sufficient to support plaintiffs claim, damages ought to have been limited to Robinson’s lost wages. Accordingly, I respectfully dissent.

      . It is undisputed that at the time Robinson was hired, before it was renamed in 1999, ULL was known as the University of Southwest Louisiana.

      . The salient difference between the two policing approaches is the focus on exchanges of information with other law enforcement agencies. According to Chief Sturm, in an intelligence-led policing approach there is daily interaction with other law enforcement agencies. He explained the rationale behind intelligence-led policing is that when a specific crime is committed in one area, the exchange of that knowledge between agencies averts the crime from occurring in another area.

      . Robinson alleged that he filed his petition after having received a "[r]ight to sue” letter from the U.S. Equal Employment Opportunity Commission. (R-10) A breach of contract claim against the Board of Supervisors and Chief Sturm as well as a claim for age-based employment discrimination against Chief Sturm in his individual capacity were volun- . tarily dismissed.

      . The evidence established that when Robinson tendered his documents indicating his intent to retire, the disciplinary action taken by Chief Sturm against him was rescinded. Thus, the legality of Chief Sturm’s disciplinary action was never adjudicated.


author: DREW, J. CARAWAY, J.,

text:
    William Lane STEPHENSON, III, Sally B. Stephenson, William Lane Stephenson, IV, and Rane Stephenson Lallier, Plaintiff-Appellant v. WILDCAT MIDSTREAM CADDO, LLC, Defendant-Appellee
    No. 50,982-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 10, 2016

      WIENER, WEISS & MADISON, By: John M. Madison, Jr., M. Allyn Stroud, Counsel for Appellant
    AYRES, SHELTON, WILLIAMS, BENSON & PAINE, LLC, By: Lee H. Ayres, Stacey A. Smith, Counsel for Ap-pellee
    Before CARAWAY, DREW and MOORE, JJ.
   DREW, J.

| plaintiffs, William Lane Stephenson, III, et al. (“Stevenson”), appeal from a judgment dismissing their action for in-junctive relief and money damages against defendant, Wildcat Midstream Caddo LLC (“Wildcat”). We affirm.

Plaintiffs are the record owners of the NW quarter of the NW quarter of Section 11, Township 14N, Range 7W in DeSoto Parish. Double R Farms, LLC (“Double R”), is the record owner of the NE quarter of the NW quarter of the same Section. Double R acquired title to this property in 2008, and is not a party to this dispute.

In 2012, Wildcat informed both Stephenson and Double R that it desired to build a pipeline on a portion of the property. Wildcat ultimately constructed the pipeline, which ran north-south, down the western edge of the NE quarter of the NW quarter. Because Double R was the record titleholder of that property, Wildcat negotiated with and bought a right-of-way agreement from Double R, not Stephenson. During construction of the pipeline, Wildcat cut the timber along the servitude.

In November 2012, Stephenson filed suit against Wildcat. Plaintiffs alleged that, despite what the public records show:

• they were the owners of a three-acre strip of land on the western side of the NE quarter of the NW quarter;
• they owned this property by acquisitive prescription due to adverse possession of the property for more than 30 years;
• Double R knew that it did not own this strip of land because the 1993 deed transferring the property to its predecessor in title contained the following language:
12“The parties acknowledge that a portion of the property herein is sold without any warranty whatsoever ... that non-warrantied property being described as follows:
“A strip of land one hundred (100') feet wide across the North side of the Northeast Quarter (NE 1/4) of the Northwest Quarter (NW 1/4) Range 13 West, DeSoto Parish, Louisiana, containing three acres, more or less, and leaving 37 acres....” (emphasis added); and
• Prior to construction of the pipeline, Stephenson told Wildcat’s landman, Jason Dixon, that Stephenson was the owner and Dixon had originally negotiated with Stephenson, not Double R.

In their petition, plaintiffs asked the court to grant them a permanent injunction ordering Wildcat to remove the pipeline from the plaintiffs’ property, money damages for removing the timber, and attorney fees. The plaintiffs filed an amended petition alleging that after the first suit was filed, Wildcat caused the removal of additional timber and fencing from the plaintiffs’ property. Plaintiffs alleged that these actions amounted to the intentional destruction of evidence and sought additional damages for spoliation of evidence. Wildcat answered the petitions generally denying wrongdoing and urging that plaintiffs’ petition had only vaguely described the strip in question.

After discovery and an unsuccessful motion for summary judgment by defendants, the case went to trial in November 2015. Plaintiffs’ position at trial was that they, not Double R, were the owners of the three-acre strip where the pipeline was located. Wildcat raised several defenses:

• Wildcat was entitled to rely on the public records doctrine to determine whom to pay for the right-of-way, and because Stephenson’s claim to the land was not recorded, it correctly paid Double R, not Stephenson;
[¾* Stephenson cannot prove acquisitive prescription of the property because the fence they rely on was built by the previous owner of the NE section and was not the western boundary of the NE section; and
• Even if Stephenson had obtained ownership of the strip by acquisitive prescription, Double R had reae- ■ quired ownership by 10-year acquisitive prescription when its predecessor in title obtained record title to the property and rebuilt a boundary . fence in 1993 or 1994.

A large number of photographs of the property,-both historical and modern, were admitted into evidence. The court heard extensive testimony from plaintiffs’ witness Randall Grip, vice-president of Aero-Data Corporation and an expert in photo interpretation and photogrammetry, the taking of measurements from photographs. Grip testified:

• The USGS topo map of the area, created from aerial photos taken in 1974, has a fine red dash line showing a single fence dividing the NW and NE quarters. The fence does not run vertically down the quarter section line but, for much of its length, runs diagonally and encroaches onto the NE quarter;
• This encroachment encompasses the disputed strip;
• A 1959 aerial photo of the property also shows only a single fence that is, largely, not on the quarter section line and that encroaches onto the NE quarter;
• Close examination of the photo with special equipment did not reveal evidence of any fencing on the quarter section line;
• Likewise, an aerial photo of the property taken in 1974 revealed no evidence of any fence on the quarter section line; the only visible fence was the one that encroached onto the NE quarter enclosing the strip for use by the NW quarter;
• Neither the 1959 nor the 1974 photo showed any evidence that there was any enclosure of the strip between its eastern edge and the quarter section line;
• A February 2004 aerial photo showed the strip area in the NE quarter planted with trees, and these trees were also planted in the NW quarter; and
f The tree growth by 2004 prevented observation of whether there was a fence built on the quarter section line to separate the NW quarter from the NE quarter.

Plaintiff William Stephenson, III, testified:

• His father acquired the NW quarter of the NW quarter in the 1980s and later donated the property to him;
• When he initially walked the property at the time his family acquired it, there was only one fence dividing the NW quarter property from the NE quarter property, and that fence encroached onto the NE quarter. This fence was “a net wire fence that was grown into the trees, maybe three foot tall with two strands of barbed wire above it ... ”;
• This fence effectively made the strip of the NE quarter a part of the Stephenson property;
• There was no fence, and no evidence that there had ever been a fence, along the quarter section line dividing the NW quarter from the NE quarter;
• In 1986, with assistance from the Department of Agriculture, he planted pine trees both on the strip and on the adjoining property in the NW quarter;
• In June 2012, landman Jason Dixon approached him about acquiring a right-of-way across the property for a pipeline;
• Stephenson told Dixon that “someone had put a fence inside mine to the west of mine, but because of adverse prescription it was there when we bought it and it was our understanding that we had purchased that piece of land also”;
• About a month later, Dixon informed Stephenson that the pipeline would be run entirely on Reggie Roe’s land but that “they would do their homework and due diligence and try and pay the proper land owner of that section of land”; and
• In early September, Wildcat moved heavy equipment onto the NE quarter and cleared an area to the east of the section' line. When Stephenson complained to Dixon about this, Dixon “wanted to know how much it was going to cost us ... for the damages to our property.” Dixon then referred Stephenson to Dixon’s boss, Hayden Havens, who told Stephenson that “they were looking into it and they would take care of us.” However, Wildcat never paid Stephenson anything; Havens told Stephenson that “they [Wildcat] would take their chances in Rcourt.” Stephenson had the missing trees appraised; their value was $8,110.32.

In support of his testimony that the strip area had been fenced for more than 30 years, Stephenson offered the expert testimony of Dr. Richard Keim, a forester, who opined that the wire had become embedded in the supporting tree in roughly 1963 and was probably attached to the tree a year or two prior to then. An expert in barbed-wire fencing, Dan Sowle, opined that the wire had been in place between 60 and 80 years prior to 2013. Forester Timothy Holland testified that he helped plant the trees on the strip in 1984 and, at that time, there was only one fence on the property and he planted the trees up to that fence. Terrell Brown, a local resident who grew up hunting on the property, testified that there had been only one fence in the area and that there had never been a fence to the west of the fence that enclosed the strip.

Another local resident, William Pru-dhome, said that his grandparents owned the NE quarter of the NW quarter (now the Double R property) and that he grew up on the property in the 1960s and 1970s until 1982 when his grandparents died. He explained that there had been only one fence dividing the eastern and western quarters and it was the fence that enclosed the strip for the NW quarter. Prudhome said that he was present in 1962 or 1963 when his grandparents rebuilt this fence because it was old and worn out. He also testified that the strip of land between this fence and the quarter section line had never been enclosed.

Reggie Roe, one of the principals of Double R Farms, testified for the defendant. Roe said:

• He and his wife Susan bought the NE quarter of the NW quarter on October 4,1993;
li* Roe grew up “a mile and a half up the road” from the subject property and knew William Prudhome’s grandfather, Howard Prudhome, and his wife, Jewel. Roe said that as a child, he helped at Prudhome’s dairy barn;
• After Howard and Jewel died, their daughter Frances Clotese Baker and her husband Tommy moved onto the Prudhome property. The Bakers held a rodeo on the property every Saturday night, and Tommy Baker bought and sold Roe’s cows for years;
• There had always been a fence on the section line dividing the NW quarter from the NE quarter. The corner posts were made from cross ties or telegraph poles and the other posts were “just wood posts.” The wire used was a four-strand barbed wire. Roe identified a recent photo of himself next to one of the old telegraph poles that supported the section line fence and testified that the location was the southeast corner of the NE 1/16 section. Roe had other photos of barbed wire that he identified as the remnants of the old section line fence;
• The area of the strip was used for a hog pen by the Prudhomes. The edges of the hog pen were enclosed by a “net wire” fence. This wire was attached to the section line fence on the west side and to trees on the east side;
• In October 1993, the same month he bought the NE quarter, Reggie Roe and some of his farm hands rebuilt the north-south fence on the section line between the NE and NW sections. They used some new wire and “tied it back together where the trees and stuff had fell across it.” This fence was along the same line where Howard Prudhome’s fence had been. The telegraph pole fence post in the photo of the old boundary line fence is only a few inches to the west of the fence that Roe built in 1994;
• The following year, the Roes built all new perimeter fencing. The western edge of this new fence, made from modern T-posts and wire, is exactly on the north-south section line between the NW and NE sections. Photos of this fence were admitted into evidence. The plaintiffs never complained about this fence or filed any action claiming ownership of the strip to the east. The Roes, not the Stephensons, had paid the property taxes on the entire NE section; and
• The part of the property the Roes bought without warranty was the “northeast corner” of the section where Henry and Eleanor Lee— cousins of the Prudhomes — lived. There was no lack of warranty for |7the property on the western edge of the NE section. However, Roe admitted that the property where the Lees lived was in Section 2, not Section 11.

The record shows that Stephenson was well aware of the fence built by Roe in the 1990s:

Q: Reggie’s fence — you know for a fact that Reggie’s fence was built, or replaced, or whatever, in ’94 or ’95, that mid-ninety time frame?
A: I — yes. A friend of mine actually had to show it to me because it was in such thick young pine trees you couldn’t visible [sic] see it unless you walked in there.
Q: ... You first knew about it when Mr. Hornbuckle advised you about it?
A: He had to go show it to me.
Q: Yes, sir. He told you about it in 1994 or 1995?
A: Correct
Q: You learned about Reggie’s fence in 1994 or 1995?
A: Correct.
Q: You personally went out there and laid eyeballs on it in 1994 or 1995?
A: Correct.
Q: You didn’t think much about it when you saw it, did you?
A: I thought nothing about it because our fence with [sic] the boundary line when we bought it, and I thought that was ours and because it had been there so long that was our property and I didn’t think anything about it.

A friend of Roe’s, Johnny Pearce, testified about the original fencing. Pearce said that he worked on the old Prudhome farm (now the Double R property) from when he was a child until 1966 or 1968, when he left the area. Pearce said that he helped build a hog pen on the property. Pearce testified that there was originally a fence on the western side of the farm and | sthat the hog pen fence tied into that fence. He said that the boundary fence “originally was a barbed wire, but I think somebody prior to me, I don’t know who, had added the hog wire fence on the bottom of it.” Pearce also said about the perimeter fence that “some of it was not maintained a lot ... with trees and stuff, but there was always a fence there. In the early days, there was a good fence.”

After hearing all the witnesses, the trial court ruled in favor of Wildcat, stating:

Mr. Ayres, the ruling is exactly what you said. 1993 there was a disturbance in law when the deed was recorded. There was a disturbance in fact when the fence was built. Mr. Stephenson had full knowledge of it. Had I known that in summary judgment, I would have granted it. Case dismissed at the plaintiffs costs.

The plaintiffs now take this devolutive appeal.

DISCUSSION

On appeal, the plaintiffs argue:

• The trial court erred by failing to hold that Stephenson owned the strip by virtue of acquisitive prescription of 30 years;
• The trial court erred by stating that alleged “disturbances” in law and fact that occurred after Stephenson acquired ownership of the strip somehow caused Stephenson to lose ownership of the strip; and
• The record does not support a finding that Roe obtained ownership of the strip by acquisitive prescription of 10 years because (1) Roe did not possess in good faith, (2) Roe’s alleged possession was clandestine and (3) Roe did not possess by just title.

Thus, plaintiffs argue, the trial court erred by not awarding damages to Stephenson.

This court reviews factual findings under the manifest error standard, Stobart v. State, through Dept. of Transp. & Dev., 617 So.2d 880 (La.1993), while legal issues are reviewed de novo. Brewer v. J.B. Hunt Transport, Inc., 2009-1408 p. 9 (La. 3/16/10), 35 So.3d 230.

This case was not instituted as a posses-sory or a petitory action. The plaintiffs sought money damages for timber trespass and injunctive relief. Although the plaintiffs did not formally demand a judgment declaring them the owners of the property, this court has previously said that proof of ownership is essential in a timber trespass case. Bennett v. Louisiana Pacific Corp., 29,598 (La.App. 2 Cir. 5/9/97), 693 So.2d 1319, writ denied, 97-1552 (La. 10/3/97), 701 So.2d 199. In Bennett, unlike in this case, the alleged trespasser defendant asserted its own claim of ownership of the property at issue. In the instant case, this court requested supplemental briefs from the parties on the question of whether Double R was an indispensable party under these circumstances, and both Stephenson and Wildcat urged that it was unnecessary to add Double R as a defendant. We agree with the parties that a complete adjudication of this appeal does not require the presence of Double R.

For purposes of this discussion, we will assume that the plaintiffs’ argument about 30-year acquisitive prescription is true. The trial court made no explicit finding of fact about that issue but concluded, as do we, that events occurring after Stephenson may have acquired ownership of the property ended the Stephensons’ rights to the relief they sought, regardless of their prior ownership of the property.

The Roes purchased the NE 1/16 section in 1993. Their title conveyed to them the NE quarter of the NW quarter of the section. The only irregularity in the conveyance was the sale without warranty of a “strip of land one hundred (100') feet wide across the North' side of the Northeast Quarter (NE 1/4) of the Northwest hoQuarter (NW 1/4), Range 13 West, De-Soto Parish, Louisiana, containing 3 acres, more or less, and leaving 37 acres, more or less.” Although this description does not include the section number, the context makes it clear that it applies to the Section 11 property at issue. However, no context is necessary to interpret the language that places the “without warranty” property at the north of the 1/16 section rather than at its west. At any rate, the seller conveyed to the Roes whatever interest she had in the subject property.

Even without Roe’s testimony that he immediately rebuilt or repaired a fence on the quarter section line in 1993, the testimony of Mr. Stephenson establishes that Roe had built a modern fence down the north-south quarter section line by 1995 at the latest. Thus the strip was fenced into the NE quarter of the NW quarter for at least 17 years before this dispute arose, and this record reveals no disturbances in law or in fact during that time. For all of that time, the Roes and/or Double R, not Stephenson, paid property taxes on the strip as well.

La. C.C. art. 3473 provides:

Ownership and other real rights in im-movables may be acquired by the prescription of ten years.

La. C.C. art. 3475 provides:

The requisites for the acquisitive prescription of ten years are: possession of ten years, good faith, just title, and a thing susceptible of acquisition by prescription.

The trial judge’s brief reasons for judgment show his conclusion that Stephenson’s interest in the property had been extinguished by acquisitive prescription. In his reasons, the trial judge referred to the argument of defense counsel, and we reproduce that here for posterity and in support of In this court’s choice not to conduct a de novo review based solely upon the brevity of the trial court’s reasons:

[Tjhere’s no proof that anyone ... possessed adversely to Reggie Roe and I’ll tell you why. When Reggie Roe bought this property, he built — when he bought the northeast of the northwest, he — one of the first things he did was he went back and repaired the actual boundary fence and fenced Mr. Stephenson out and Mr. Stephenson knew it because he went and looked at it and for eighteen years he never said a word. He didn’t say anything about the boundary fence. Hey, Mr. Roe, you’ve fenced me out, I need to file a possessory action. I need to file a petitory action. Nothing. No proof at all. And he did not possess adversely against Mr. Roe because within months or so after buying that property, he rebuilt the actual boundary fence and fenced him out of the area of where the pipeline is covered. Plaintiffs’ point being, Your Honor, plaintiffs can’t carry their burden of acquisitive prescription because Roe is clearly the owner. ...
Even if public records doctrine doesn’t control and even if somehow or another they got by acquisitive prescription over thirty years because of the hog fence that was built by Mr. Prudhome, not the owner of Stephenson’s predecessor in title but by the predecessor in title to Mr. Roe. Even if that somehow counts, the fact of the matter is Mr. Roe got it back by acquisitive prescription. And what I mean by that is, when Mr. Roe, even if he had lost it which he didn’t, but even if he had, when he goes back and rebuilds this boundary fence in 1993 or ’94 and fences Mr. Stephenson out and Mr. Stephenson knows about it, ten years acquisitive prescription under Article 1375, he had title and his deed is in the record ..., he had record title to the northeast quarter of the northwest quarter. He had record title and he had possession of it by way of a fence for over ten years, so he got it back by 2003 or 2004.

We conclude that Roe/Double R satisfied all of the requirements of La. C.C. art. 3475 and thus the plaintiffs failed in them burden of proving ownership of the disputed strip in 2012. The property was plainly a thing susceptible of acquisition by prescription, and the 1993 deed conveying the property to the Roes was just title; as noted, the “without warranty” provision referred to a strip on the north, not on the west, of the property. |1aWe also reject Stephenson’s contention that Roe’s/Double R’s possession of the property was not public per La. C.C. art. 3476; the fence built by Roe was of a type in common use and Stephenson was actually aware of the fence by 1994 or 1995.

The plaintiffs’ principal objection to Double R’s acquisition of the property by 10-year acquisitive prescription is their argument that Roe’s possession of the property was not in good faith. La. C.C. art. 3480 provides:

For purposes of acquisitive prescription, a possessor is in good faith when he reasonably believes, in light of objective considerations, that he is owner of the thing he possesses.

Plaintiffs point to the evidence that Roe said he knew of a fence in the trees on the strip and further that Roe obviously knew that there was a sizable pine forest on the strip. Roe maintained that there were two fences through the trees, one of which was the quarter section line boundary fence, and he supplied the court with photos depicting old fencing that he asserted was the remains of the original section line boundary fence. At trial, Roe also read from a 1985 survey that describes what appears to be the subject property as “grown up in hardwood brush and briars.” Although the plaintiffs assert that Roe knew of the presence of “posted” signs on the hog wire fence to the east, our review of Roe’s trial testimony does not reveal that he made any such statement. Although the trial judge did not make an explicit finding of fact about Roe’s good faith, our review of the record as a whole reveals nothing that would present a reversible error in the trial court’s conclusion that Stephenson failed to prove that they owned the property in 2012.

| ^Because the trial court correctly concluded that the plaintiffs failed to carry their burden of proof to obtain the relief sought, at appellants’ cost, the judgment of the trial court is affirmed.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

I respectfully dissent.

|tThe substance of this case was litigated by the parties entirely as a boundary action. See, my concurring opinion rendered 5/13/97 in Bennett v. La. Pacific Corp., 29,598 (La.App. 2 Cir. 5/9/97), 693 So.2d 1319, writ denied, 97-1552 (La. 10/3/97), 701 So.2d 199. The trial court ruling, and indeed the majority’s affirmance, rests upon factual recognition that the fence (the “Old Fence”) encroaching from Stephenson’s tract into the NE Quarter of the NW Quarter was the established boundary when Roe (hereinafter referred to as his family limited liability company name, “Double R”) acquired the property in 1993. Both rulings of the trial court and this court also acknowledge that "with the Old Fence’s construction and continuing existence for over 30 years before 1993, Stephenson was the owner of the disputed strip of land in 1993.

With the above facts, the majority ruling establishes that Stephenson lost ownership to the disputed strip, and the Old Fence ceased to be the common boundary 10 years after Double R’s construction of the new fence in 1993. This is a finding of 10-year acquisitive prescription in favor of Double R. The majority ruling therefore properly followed the boundary action dictates of La. C.C. art. 792 and La. C.C.P. art. 3693 and fixed the common boundary between these contiguous lands at the new Double R fence “in accordance with the ownership” of Stephenson and Double R.

My dissent rests on one question: Where is Double R? Double R is not a party to this action. Nothing in our law regarding res judicata prevents Stephenson from bringing a second boundary action against Double R. Wildcat’s servitude is carved out of the ownership claim of Double R. Because of the absence of Double R, the trial court’s judgment was incomplete as it should have expressly set forth the boundary as the new Double R fence from its adjudication of the facts.

While this court properly noticed and raised the peremptory exception of non-joinder under La. C.C.P. art. 927(B), there is no discussion by the majority in its opinion concerning the tests of La. C.C.P. art. 641. Clearly, in the absence of Double R’s presence as a party, complete relief in this boundary action “cannot be accorded among those already parties.” La. C.C.P. art. 641(1). Also, Double R’s claim of ownership presented by Roe’s testimony at trial means that, in its absence, the adjudication of this boundary action leaves Stephenson and Wildcat “subject to a substantial risk” of re-litigation and inconsistent judgments for the determination of the boundary between these two tracts. La. C.C.P. art. 641(2)(b). See, Morgan v. Winbeau Oil & Gas Co., 45,921 (La.App. 2 Cir. 2/16/11), 57 So.3d 1202 (where this court properly reversed on its own motion, a judgment in a real action involving mineral rights because of the absence of other record owners of the immovable property at issue).

      . Double R’s predecessors in title were Reggie and Susan Roe, who are the members of Double R. The Roes acquired the property from a third person in 1993.

      . The deed specifies that the strip sold without warranty is on the north side of the Double R property. The strip in question in this case is on the west side of the Double R property.

      . William Prudhome disputed this, saying, "As long as they (his grandparents) were living, Reggie Roe never been on that property.”

      . William Prudhome disputed this assertion.

      . Mr. Ayres was counsel for Wildcat.

      . In addition, this case was exceptionally well tried and argued by both sides.

      . See generally, Ryan v. Lee, 38,352 (La.App. 2 Cir. 4/14/04), 870 So.2d 1137, writ denied, 04-1531 (La. 10/1/04), 883 So.2d 991.