author: PAUL A. BONIN, Judge.

text:
    James H. HOOPER, Jr. et al. v. HERO LANDS COMPANY, et al.
    No. 2015-CA-0929.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 30, 2016.

      See also, 176 So.3d 549

      Louis R, Koerner, Jr.,. Koerner Law Firm, Houma, LA, for Plaintiffs/Appellants.
    Pivach, Pivach, Hufft, Thriffiley & Dunbar, L.L.C., Attorneys at Law, George Pi-vach II, Timothy Thriffiley, Francis J. Lo-brano, Brad M. Driscoll, Law Offices of Francis J. Lobrano, Le Verrier Cooley, IV, Special Assistant Parish Attorney, Belle Chasse, LA, for Defendants/Appellees.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

11 There are ten lots of equal width, The most westerly one, Lot 26, is owned by Patsy and James Hooper, the plaintiffs. The other nine, Lots 27 through 35, are owned by Hero Lands Company, one of the defendants. According to the titles, the width of each lot is one arpent or 192 feet, which would mean that the total distance should be 1920 feet from the western boundary of Lot 26 to the eastern boundary of Lot 35. But the actual distance between the boundaries is 2040.77 feet, a difference of 120.77 feet.

This difference is the genesis of this controversy. When Allen Hero authorized the Plaquemines Parish Government to dig a thirty-five foot wide drainage canal on the company’s property, he directed that it be situated at the most westerly boundary of Lot 27, a boundary line shared with the Hoopers’ Lot 26. In situating the proposed canal, Hugh McCurdy III, a professional surveyor, measured to the boundary line for Lots 26 and 27 using the title measurement of 192 feet. Based upon that measurement, Plaquemines Parish entered onto the site and began preparations for digging the canal, including the clearing of trees.

|2The Hoopers sued the company, the parish, Mr. Hero and the surveyor, claiming that they had trespassed onto the Hoo-pers’ property. In addition to the trespass action, the Hoopers asserted a possessory-action and a boundary action along with their request for injunctive relief. Further, the Hoopers argued that all of the canal preparations occurred on their property either because of their title to Lot 26 or because they had acquired some or all of Hero’s Lot 27 by ten-year or thirty-year prescription.

The company and Mr. Hero filed a motion for summary judgment by which they sought, among other relief, the judicial fixing of the boundary line for Lots 26 and 27. They also sought a finding that the Hoopers had waived their possessory claims by improperly cumulating a posses-sory and petitory action. The trial judge denied the motion in part, finding that the Hoopers had not improperly cumulated actions and thus did not waive their posses-sory claims. The judge granted the motion in part finding that the Hoopers had not acquired the property by either a ten—or thirty-year acquisitive prescription. To set the boundary, the trial judge apportioned the 120.77 feet equally among the ten lots, with 12.077 feet per lot, resulting in each lot having an actual width of 204.077 feet. The trial judge then fixed the boundary between Lots 26 and 27 as 204.077 feet, beginning from the dividing line between Lots 25 and 26 and extending eastward. In partially granting the summary judgment, the trial judge recognized that the canal preparations would have been conducted, to some extent, on the supplemental 12.077 feet of the | ¡¡Hoopers’ Lot 26 and, accordingly, reserved the trespass action for a trial on the merits.

The judgment was subsequently amended for the sole purpose of recognizing that the Hoopers had proven a right to possess the property, in light of their demand for relief on the possessory claim. The remainder of the judgment was left unchanged. The Hoopers appealed.

We have reviewed de novo the resulting partial summary judgment and conclude that the Hoopers, by cumulating both pos-sessory and petitory claims, converted their suit to a petitory action, thereby waiving their possessory claims. Thus, the trial judge was legally incorrect by finding otherwise, and consequently, his ruling finding the Hoopers proved a right to possess is without effect. In all other respects, we conclude the trial judge was legally correct both in fixing the boundary and in rejecting the Hoopers’ alternative contentions that their title or possession trumped Hero’s title ownership. Accordingly, we amend the judgment to delete that portion which recognizes the Hoopers’ possession and, as amended, affirm the judgment and remand for further proceedings in the trial court.

We explain our decision in considerable detail below.

Jii

In this Part, considering that we are reviewing a ruling on summary judgment, we describe the undisputed facts, beginning with an historical account of the property.

A

The ten adjacent lots in this case are part of the former plantation of Pierre Cazelar (also spelled Cazalar, Cazalard, and Cazelard in the record). The plantation was subsequently acquired by the City of New Orleans, which commissioned Louis Pilie, a surveyor, to subdivide the property into forty-four lots spanning across Orleans, Jefferson, and Plaque-mines Parishes. The Pilie plat does not contain any specific measurements, but, it does indicate that each lot is of equal width. In 1860, the city held a public auction sale, the documentation of which reflects, with reference to the Pilie plan, that each lot was intended to be one ar-pent, or approximately 192 feet, in width. At the sale, the Hoopers’ ancestor in title, Alphonse Camus, purchased Lots 17-26, and Hero’s ancestor in title, Pierre Caze-lar, Jr., purchased Lots 27-44. In both respective deeds to Camus and Cazelar, the lots are described as “measure[ing] each one arpent front on the public road.” In subsequent sales transferring Lot 26 and Lots 27-35 throughout the years, the deeds consistently describe the ten lots in measurements of arpents and refer to the Louis Pilie plat of 1860.

Eventually, Burmaster Land & Development Company (“Burmaster”) acquired Lot 26 and Hero Lands Company (“Hero”) acquired Lots 27-35. |,^Importantly for our purposes, from 1974 until December 31, 1989, Hero leased to Burmaster property beginning at the dividing line between Lots 26 and 27 and extending up to 150 feet easterly into Lot 27.

Burmaster later subdivided Lot 26, and in 1992, sold tracts B and C of Lot 26 to the Hoopers. The dividing line between these two tracts was the line between Jefferson and Plaquemines Parishes, and the tracts ran the full width of Lot 26. The deed contains no mention of arpents; rather, it states that the width of Lot 26 is 192 feet. The Hoopers, in agreement with Burmaster, declined to request a survey prior to the conveyance. The Hoopers’ deed contains a warranty of title as to the tracts of Lot 26, but also conveys without warranty, “all property that Burmaster Land & Development Co., Inc. may own lying easterly” of Lot 26.

Over the years, surveys of the property have revealed that the distance between the western boundary of Lot 26 and the eastern boundary of Lot 35 is actually 2040.77 feet rather than ten arpents (1920 feet), measured by distinct stone monuments at either end, which have been recovered by several different surveyors.

There is, moreover, no boundary agreement between the parties as to the line between Lots 26 and 27. Cfi La. Civil Code arts. 789, 795.

In this Part, in light of the appellants’ several complaints about procedural errors, which are more fully discussed in Part VI, post, we begin with a discussion about the nature of this lawsuit, and the intersection between possessory, petitory, and boundary actions and, specifically, how they affect the case herein.

A

As an outset matter, we are impelled to point out that “[t]he ownership and the possession of a thing are distinct.” La. Civil Code art. 481. “Ownership exists independently of any exercise of it and may not be lost by nonuse.” Ibid. “Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.” La. Civil Code art. 477. “Possession is the detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name.” La. Civil Code art. 3421.

The Louisiana Supreme Court has emphasized the distinction between real actions for possession and ownership and explained that a possessory action protects possession and a petitory action protects ownership. See Todd v. State, Through Dept. of Natural Res., 474 So.2d 430, 432-33 (La.1985). The rights and burden of proof attendant to a possessory action are distinct and unique from those in a petito-ry action. See ibid. A plaintiff is thus prohibited from cumulating possessory and petitory actions in the same suit, or pleading them in the 17alternative, and if he does, then the possessory action is waived and the suit proceeds as a petitory action. See La. C.C.P. art. 3657; see also Phipps v. Schupp, 14-0672, p. 30 (La.App. 4 Cir. 3/18/15), 163 So.3d 212, 229, n. 10 (plaintiff filed possessory action; subsequent pleading asserting ownership, even if inadvertent, converted it to petitory action); but see Plaquemines Parish Gov’t v. Schenck, 15-0127, 15-0128, 15-0129 (La.App. 4 Cir. 12/9/15), 182 So.3d 1122 (finding legal ownership as the sole issue in appeal from judgment on possessory action), writ denied, 16-0045 (La.2/26/16), 187 So.3d 1004, 2016 WL 903014. Such rules result from the intention to keep the trial of the issues of possession and ownership as separate as possible. See La. C.C.P. art. 3657, Official Revision Comment (a).

In their third amended petition, intended as a substitute for all prior petitions, the Hoopers contended that they alone were in possession of surplus property, resulting from the 120.77-foot differential, and had satisfied the requisites to maintain the possessory action. See La. C.C.P. art. 3658. Thus, the Hoopers prayed for a judgment in their favor recognizing their right to possess the property up to a fence line. Moreover, they sought a judgment in their favor recognizing the boundary between Lots 26 and 27 as the line up to the fence, which would incorporate the entirety of the 120.77-foot disputed property.

Importantly, for our purposes, the Hoo-pers asserted that the surplus property had been conveyed to them by title, as evidenced by the phrase “one arpent more or less,” the “more” being the 120.77 feet. In an apparent alternative argument, the Hoopers claimed that they, together with their ancestors-in-title, had possessed the 1¡¡surplus land for either a ten—or thirty-year prescriptive period. Thus, the Hoo-pers effectively claimed ownership of the property by title and/or acquisitive prescription.

B

A possessory action is “one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed.... ” La. C.C.P. art. 3655. To maintain the possessory action, the possessor must satisfy four requisites: (1) he must have had possession of the property at the time of the disturbance; (2) he and his ancestors-in-title had such possession without interruption for more than a year immediately prior to the disturbance; (3) the disturbance was one in fact or law; and (4) the possessory action was instituted within a year of the disturbance. See La. C.C.P. art. 3658. A disturbance in fact is, in relevant part, a “physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly....” La. C.C.P. art. 3659. Importantly, in a possessory action, the ownership or title of the parties is not at issue, and therefore evidence of ownership or title to the property is, as a general rule, not admissible. See La. C.C.P. art. 3661.

A petitory action, conversely, is “one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff’s oionership.” La. C.C.P. l9art. 3651 (emphasis added). The burden of proof in a petitory action depends on the defendant’s possession of the property, or lack thereof. If the defendant is in possession, the plaintiff must prove that he has acquired ownership from a previous owner or by acquisitive prescription, and if the defendant is not in possession, then the plaintiff must prove a better title than the defendant. See La. C.C.P. art. 3653. Established jurisprudence requires a more onerous burden if the defendant is found to be hi possession of the property; that is, the plaintiff must prove “title good against the world.” Pure Oil Co. v. Skinner, 294 So.2d 797, 799 (La.1974). “Title good against the world” has been interpreted as proof of an unbroken chain of valid titles from the sovereign, or proof that the plaintiff has acquired the property by ten—or thirty-year prescription. See Cuny v. Quinn, 03-0649, p. 5 (La.App. 5 Cir. 10/28/03), 860 So.2d 232, 235; see also Yiannopoulos, Civil Law Treatise—Property, § 11:10, pp. 607-08 (5th ed.2015).

A boundary action is a real action distinct from both a possessory and a petitory action. See La. C.C.P. arts. 3691-3693; see also Yiannopoulos, § 11:31, p. 645. In such an action, the court “shall fix the boundary according to the ownership of the parties,” La. Civil Code art. 792 (emphasis added), and if neither party proves ownership, the boundary must be fixed according to possession. See ibid. See also La. C.C.P. art. 3693 (“After considering the evidence, including the testimony and exhibits of a surveyor or other expert appointed by the court or by a party, the court shall render judgment fixing the boundary between the contiguous lands in accordance with the ownership or possession of the parties.”).

| inBecause a judgment in a boundary action necessarily involves a preliminary determination of ownership, it arguably cannot be cumulated with a possessory action. See La. C.C.P. art. 3661 (“In the possessory action, the ownership ... of the parties ... is not at issue.”); see also Kadair v. Hampton, 13-1171, p. 14 (La.App. 1 Cir. 7/10/14), 146 So.3d 694, 704 (“[Pjroof of ownership is a necessary prerequisite to establishing the boundary”); Harvey v. Harvey, 345 So.2d 113, 115-16 (La.App. 1st Cir. 1977) (affirming trial court’s grant of exception of improper cumulation of pos-sessory and boundary actions). But see Fontenot v. Chapman, 377 So.2d 492, 495-96 (La.App. 3rd Cir.1979) (defen-dant’s reconventional demand seeking a fixing of the boundary line did not convert possessory action into petitory action). Notably, however, a boundary action may be cumulated with a petitory action, as both seek to determine ownership. See Kadair, 13-1171, p. 14, 146 So.3d at 704; Yiannopoulos, § 11:31, p. 646, n. 6 (citing cases).

C

Here, the Hoopers sought to bring a possessory and boundary action, and additionally asserted ownership of the disputed property by either title or acquisitive prescription. The parties and the trial judge treated this suit as a possessory action, as evidenced by the ruling on summary judgment, wherein the | njudge found that the Hoopers had not converted to a petitory action, and thus had not waived their possessory claims.

We find on our de novo review, however, that the Hoopers improperly cumulated their possessory action with a petitory action, demonstrated by their assertions of ownership by title and by prescription, and their request to fix the boundary line. As such, the Hoopers converted their suit into a petitory action and waived their claims of possession. See La. C.C.P. art. 3657; see also, e.g., Reynolds v. Brown, 11-525, p. 7 (La.App. 5 Cir. 12/28/11), 84 So.3d 655, 659 (although plaintiff sought to file possessory action, pleadings and facts were more consistent with petitory action); Chevron U.S.A. Inc. v. Bergeron, 551 So.2d 746, 749 (La.App. 1st Cir.1989) (“the person claiming ownership converts the [possessory] action to a petitory action.... ”). The language in the Hoopers’ petition that they “possessed” the property for either a ten— or thirty-year prescriptive period may suggest to a casual reader that the claim is consistent with a possessory action, but we point out that a ruling on the issue of acquisitive prescription would necessarily be a determination of ownership, or lack thereof. See La. Civil Code arts. 3473, 3486 (located in Book III—Of the Different Modes of Acquiring the Ownership of Things).

Accordingly, we find that the trial judge was legally mistaken by finding that the Hoopers had not converted their suit by improperly cumulating possessory and pet-itory actions. As such, his ruling that the Hoopers had proven possession and 11ghad a right to possess the property is without effect; we accordingly delete that portion of the amended judgment.

And given our finding that the Hoopers converted the suit to a petitory action, we now determine their burden of proof. See La. C.C.P. art. 3653; Pure Oil, Cuny. The trial judge found the Hoopers to be in possession of the disputed property and although we delete that portion of the judgment, we agree, after a review of the record, that the Hoopers were in possession of the property up to their fence line, and consequently, defendants were not in possession. Therefore, the Hoopers were required to prove “a better title [to the property] than the defendant.” La. C.C.P. art. 3653(2). Cf. Pure Oil, 294 So.2d at 799.

Ill

With the preceding conclusions in mind, in this Part we set forth the relevant principles regarding review of the partial summary judgment.

We review a trial judge’s grant of summary judgment de novo, using the same criteria that the trial judge utilizes in his determination of whether summary judgment is appropriate, in the light most favorable to the non-moving party. See Phipps, 14-0672, p. 31, 163 So.3d at 229. De novo review involves examining the facts and evidence in the record, without regard or deference to the judgment of the trial court or its reasons for judgment. See Cusimano v. Port Esplanade Condominium Ass’n, Inc., 10-0477, p. 4 (La.App. 4 Cir. 1/12/11), 55 So.3d 931, 934. While the reasons for judgment may be informative, they are not determinative of the legal issues to be resolved on appeal. See id., pp. 4-5. See |iaofeo Wooley v. Lucksinger, 09-0571, 09-0584, 09-0585, 09-0586, pp. 77-78 (La.4/1/11), 61 So.3d 507, 572 (Because appellate courts review judgments and not reasons for judgments, “[judgments are often upheld on appeal for reasons different than those assigned by the district judges.”).

Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B(2). The burden of proof rests with the movant, but if the movant will not bear the burden of proof at trial, then the movant’s burden on the motion “does not require him to negate all essential elements of the adverse party’s claim ... but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim....” La. C.C.P. art. 966 C(2). If the non-moving party thereafter fails to produce contrary factual support sufficient to show that he will be able to carry his burden of proof at trial, then there is no genuine issue of material fact and summary judgment is proper. La. C.C.P. art. 966 C(2). “A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.” Phipps, 14-0672, p. 19, 163 So.3d at 224 (quoting Smitko v. Gulf South Shrimp, Inc., 11-2566, p. 8 (La.7/2/12), 94 So.3d 750, 755).

IV

In this Part, we turn to the aspect of the partial summary judgment which found that the Hoopers had not acquired ownership to the property.

The Hoopers have consistently claimed that the surplus land falls entirely on then-property, yet they have frequently altered then- arguments throughout these proceedings, sometimes contradictorily. We have, however, distilled three distinct and alternative claims by which they assert ownership: (1) by title; (2) by ten-year acquisitive prescription; and (3) by thirty-year acquisitive prescription.

A

First, as we understand them argument, the Hoopers claim title to the 120.77 feet because some of the deeds in their chain of title describe the width of Lot 26 as “one arpent more or less,” the “more” being sufficient to encompass the surplus property.

The record reveals that Hero provided evidence of a complete chain of title back to the sovereign to establish their ownership of Lots 27-35. Thus, to succeed on this claim and acquire the contested portion of Lot 27, the Hoopers must demonstrate a better title than Hero. See Part II-C, ante.

l1sThe deed from the common owner, the City of New Orleans, to the Hoopers’ ancestor-in-title, Alphonse Camus, conveyed a lot one arpent in width and did not contain the language “more or less.” Moreover, the deed from Burmaster to the Hoopers clearly states that the width of Lot 26 is 192 feet, which is the measurement of one arpent. Thus, the Hoopers’ assertion that the description “more or less” was used in all of the deeds in their chain of title is factually incorrect. Importantly, the words “more or less” have consistently been held to mean “about” and refer to, if any, an incidental and non-consequential amount of property. See Pierce v. Lefort, 197 La. 1, 8, 200 So. 801, 803 (La.1941) (“more or less” are words “of safety and precaution and, when used in a deed, are intended to cover some slight or unimportant inaccuracy in the frontage, depth or quantity in the land conveyed.”); see also Jurisich v. Louisiana Dept. of Wildlife and Fisheries, 508 So.2d 588, 591 (La.App. 4 Cir.1987); Takewell v. Masters, 48,111, p. 4 (La.App. 2 Cir. 6/26/13), 117 So.3d 301, 303-04; Long-Fork, L.L.C. v. Petite Riviere, L.L.C., 07-1316, p. 5 (La.App. 3 Cir. 6/11/08), 987 So.2d 831, 835. The inclusion of “more or less” in a deed has never been used to cover “serious discrepancies or major inaccuracies.” Pierce, 197 La. at 8, 200 So. at 803. Moreover, despite the occurrence of the language in the Hoopers’ chain of title, “[w]hen the parties trace them titles to a common author preference shall be given to the more ancient title.” La. Civil Code art. 793. Because the Hoopers and Hero trace their titles to a common owner, we thus give preference to the oldest title, |1Bfrom the City of New Orleans to Alphonse Camus, which did not include phrase “more or less” and clearly stated that Lot 26 measures one arpent wide.

Accordingly, we find that the Hoopers have not proved better title than Hero by the addition of the phrase “more or less” in subsequent titles.

B

Although we find that the Hoopers’ title does not trump Hero’s title, if the Hoopers have satisfied the requisites for either a ten—or thirty-year acquisitive prescription, then they will have acquired the property despite Hero’s title. See La. CM Code art. 794 (“When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles.”); see also George M. Murrell Planting & Mfg. Co. v. Dennis, 06-1341, pp. 4-5 (La.App. 1 Cir. 9/21/07), 970 So.2d 1075, 1080 (“In a petito-ry action, when one party relies on title and the other on acquisitive prescription, the party relying on title will prevail unless the adversary establishes his ownership by acquisitive prescription.”).

1

To be entitled to the property by ten-year acquisitive prescription, the Hoo-pers must have actually possessed the property in good faith and with just title. See La. Civil Code art. 3475. A title is just when the deed is written, in valid form, and sufficient to transfer ownership on its face. See La. Civil Code art. 3483; see also Barrois v. Panepinto, 13-0577, p. 2 (La.App. 4 Cir. 1/8/14), 133 So.3d 36, 37. Moreover, the title must sufficiently describe the property so that it can be | ^identified and located from the description. See Barrois, 13-0577, p. 2, 133 So.3d at 37. As a general rule, the description must fully appear within the four corners of the deed, or the deed should refer to a map or plat so that the location of the property is clear. See Quality Environmental Processes, Inc. v. I.P. Petroleum Co., Inc., 13-1582, 13-1588, 13-1703, pp. 12-13 (La.5/7/14), 144 So.3d 1011, 1020. If the property is not sufficiently described within the title, one cannot acquire it by ten-year acquisitive prescription. See Barrois, 13-0577, p. 2, 133 So.3d at 37-38.

Despite the Hoopers corporeal possession of the property, see Part II-C, ante, we have previously held that the lack of a definitive description of the boundaries or actual location of the property line cannot establish just title. See Ensenat v. Edgecombe, 95-0641, 95-0642, pp. 7-8 (La.App. 4 Cir. 5/15/96), 677 So.2d 138, 143-44 (map attached to the act of sale failed to delineate boundary lines and therefore title did not encompass disputed land). Here, as in Ensenat, the language in the Hoopers’ deed conveying without warranty “all property ... lying easterly [of Lot 26]” contains -no definitive description of the land, and lacks boundary or property lines. We find that the deed does not sufficiently encompass the disputed property and therefore, the Hoopers have failed to establish just title. Accordingly, their claim of ten-year acquisitive prescription must fail.

2

Alternatively, to establish ownership by thirty-year acquisitive prescription, the Hoopers and their ancestor-in-title, Burmaster, must have possessed the property for thirty years without interruption, but just title and good faith are not | ^required. See La. Civil Code arts. 794, 3486; see also Loutre Land and Timber Co. v. Roberts, 10-2327, p. 8 (La.5/10/11), 63 So.3d 120, 125-26 (a party may tack its possession onto the possession of its ancestor-in-title for purposes of 30-year acquisitive prescription).

Acquisitive prescription, however, does not run in favor of a precarious possessor. See La. Civil Code art. 3477. Precarious possession is “[t]he exercise of possession over a thing with the permission of or on behalf of the owner or possessor.” La. Civil Code art. 3437. As previously noted, from 1975 to December 31, 1989, Hero leased Burmaster a portion of Lot 27, extending up to 150 feet east from the dividing line between Lots 26 and 27. One who leases property from the owner, with the owner’s consent and permission, is a precarious possessor. See La. Civil Code art. 3438 (“A precarious possessor, such as a lessee ... is presumed to possess for another although he may intend to possess for himself.”); Delacroix Corp. v. Perez, 98-2447, pp. 8-9 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, 868-69. See also La. Civil Code art. 3439 (A precarious possessor “commences to possess for himself when he gives actual notice of this intent to the person on whose behalf he is possessing.”).

Accordingly, assuming that all other requirements for thirty-year acquisitive prescription were met, adverse possession would not have begun until at least January 1, 1990, which was the first day after the lease ended. And because thirty years from 1990 is not until 2020, the Hoopers have not satisfied the requisite time 119period and thus have not acquired the property by thirty-year acquisitive prescription.

C

In summary, we find that no genuine issues of material fact exist as to the Hoo-pers’ lack of ownership of the entire 120.77 feet of property. In other words, the Hoo-pers have failed to demonstrate that they would be able to carry their burden of proof at trial to show that they acquired the entirety of the property either by title or by acquisitive prescription. We also find that there are no genuine issues of material fact as to the conclusion that the surplus property falls somewhere in between the western boundary of Lot 26 and the eastern boundary of Lot 35. Partial summary judgment with respect to these issues was therefore appropriate.

V

We now turn to the portion of the judgment which fixed the boundary, and must decide whether apportionment, whereby the judge divided the surplus property equally among the ten lots, and fixed the boundary between Lots 26 and 27 at 204.077 feet, was the appropriate remedy.

We first note that, generally, the fixture of a boundary line is reviewed under the manifest error standard, see Morris v. Sigur, 584 So.2d 729, 730 (La.App. 4th Cir.1991), but because this is an appeal of a partial summary judgment, which requires us to decide whether genuine issues of material fact exist, we give no special weight to the lower court’s factual findings. See Phipps, 14-0672, p. 31, 163 So.3d at 229. Cf. Kadair, 13-1171, p. 11, 146 So.3d at 702 (boundary | ¡^location is question of fact; factual findings are entitled to great deference and will not be disturbed absent manifest error).

The Hoopers argue that apportionment is “foreign” to Louisiana law. Notably, however, at least two Louisiana circuit courts have previously found that equal apportionment of surplus property is appropriate, absent any other controlling questions of title. See, e.g., Kennedy v. Chappuis, 125 So.2d 247 (La.App. 3rd Cir. 1960); Thomas v. Patenotte, 47 So.2d 62 (La.App. 1st Cir.1950). Since those two cases, however, there is a dearth of guidance on the proper method to divide property which exceeds the bounds called for in the titles. The Civil Code allows a boundary to be fixed either extrajudieially, i.e., by agreement of the parties, or judicially, by a court. See La. Civil Code art. 789, The court may fix the boundary between contiguous lands in accordance with the ownership or possession of the parties. See La. C.C.P. art. 3693; see also La. Civil Code art. 792 (Fixing of boundary according to ownership or possession). Prior to its repeal in 1977, La. Civil Code art. 851 required that, if the actual property was in excess of the property stated in the titles, the surplus must be divided proportionally among the interested parties, absent any showing of possession by acquisitive prescription. See 1977 La. Acts 170. Currently, however, because there is no longer a statute |ai specifically governing the division of surplus property, it appears that in the absence of an extrajudicial agreement, the trial judge has the authority to fix the boundary line either by ownership or possession, necessarily including cases involving surplus property.

As previously discussed, the Hoopers have not acquired the property by either ten—or thirty-year acquisitive prescription; therefore, the trial judge correctly declined to fix the boundary according to possession.

As to ownership by title, we have already concluded that the ten lots were intended to be of equal width, notwithstanding the “one arpent” measurement included in the parties’ respective titles. The parties do not dispute that the distance between the western boundary of Lot 26 and the eastern boundary of Lot 35 is actually 2040.77 feet and the several surveys conducted over the years confirm this distance. It has been held that, “[a]s a matter of title, the courses and distances fixed by the survey prevail over the acreage quantities shown [in the title].” Ledoux v. Waterbury, 292 So.2d 485, 487 (La.1974) (citation omitted); see also Sutton v. Montegut, 570 So.2d 481, 486 (La. App. 5th Cir.1990) (citing Prather v. Vallen, 327 So.2d 130, 133 (La.App. 3rd Cir. 1976) (“Identification of land by acreage or quantity is the lowest ranking of all; enumerated standards in describing property and other measurements, including description by metes and bounds, controls over the acreage designation.”)). Generally, the more accurate [ ¡^description is demonstrated by a survey or map attached to, or referenced in, the title. See Sutton, 570 So.2d at 486 (citing Prather, 327 So.2d at 133) (“[W]here there is an error or ambiguity with regard to a description in a deed, an attached map relating to the ambiguity or error will control.”); McDaniel v. Roy O. Martin Lumber Co., Inc., 560 So.2d 676, 679 (La.App. 3rd Cir.1990) (“It is settled law that where there is conflict between the written description in a deed and an attached plat, the plat of survey will control and govern the conveyance.”).

Here, both parties’ deeds describe the property to be conveyed as “per plan of Louis Pilie.” A description of property, when modified by words “as per” is commonly understood to mean, “in accordance with,” or “in accordance with the terms of.” See Wickes v. Home Bldg. & Loan Ass’n, 172 So.2d 756, 758 (La.App. 4th Cir.1965). As previously noted, however, the Pilie plan does not contain any specific measurements in metes or bounds. Nevertheless, several subsequent surveys have confirmed that the stated width of ten arpents is inaccurate by a total of 120.77 feet.

Keeping the above principles in mind, it is clear that the trial judge in this case fixed the boundaries according to title rather than possession. See La. C.C.P. art. 3693. The eastern boundary of Lot 26 and the western boundary of Lot 35 have both steadfastly remained throughout the years at an actual distance of 2040.77 feet, and each lot therein was clearly intended to be of equal width. Moreover, the Hoo-pers have not proven that the entirety of the surplus property is on Lot 26 or otherwise between Lots 26 and 27. If we are to accept the Hoopers’ | ¡¡«¡argument that apportionment was improper, the alternative options would be that (1) Hero receives the entirety of the surplus property; (2) neither party receives the surplus property and the boundary lines are fixed to exactly one arpent each; or (3) the surplus property is carved out of the existing lots and Hero and the Hoopers own and use the 120.77 feet together. None of these outcomes seem equitable or commonsense in light of the substantial evidence before us. Therefore, we find that, as a matter of law, equal apportionment among the ten lots was the correct method to divide the disputed property.

VI

We now move to address the Hoo-pers’ remaining assignments of error, which are primarily procedural in nature, and which have been condensed in light of repetitive or obscure arguments.

The Hoopers assert that summary judgment was inappropriate because the trial judge did not order Hero to file a petitory action after “renderpng] judgment that the Hoopers had possession of 120.77 feet.” Relatedly, the Hoopers argue that Hero did not request affirmative relief in the proper procedural vehicle, e.g., a petition or incidental demand.

124These claims, from our reading of appellants’ brief, appear to be predicated on the rule which would require Hero to file a petitory action in light of the ruling finding the Hoopers in possession. See La. C.C.P. art. 3662 (“A judgment rendered for the plaintiff in a possessory action shall ... [o]rder the defendant to assert his adverse claim of ownership of the immovable property ... in a petitory action....”).

Had this action properly proceeded solely as possessory, the Hoopers are correct that, at their request, the judge would have been required to order Hero to file a petitoiy action. As discussed above, however, because we find that the Hoopers waived their possessory action, the trial judge’s ruling on possession is without effect, and therefore does not trigger the requirement under La. C.C.P. art. 3662 A(2). The suit proceeded as petitory, and ultimately decided the issue of ownership, thus negating any requirement for Hero to file for petitory relief. See, e.g., Kadair, 13-1171, p. 14, 146 So.3d at 704 (portion of judgment ordering defendant to file petitory action was erroneous and unnecessary in light of ruling that plaintiffs acquired property by thirty-year acquisitive prescription).

The Hoopers also argue that the trial judge erred by apportioning the property and granting the majority of it to Hero (as Hero owns nine of the ten lots), after the judge had found Hooper to be in possession of the property. Once again, because the Hoopers base their argument | Mon the possessory ruling, their argument is moot. Moreover, we have already concluded that apportionment was the correct method to divide the surplus property. See Part V, ante.

Finally, the Hoopers argue that the trial judge erred by ordering the entire record produced for appeal. The record reflects that, in accordance with La. C.C.P. art. 2128, each party designated the record for appeal as they deemed necessary: the Hoopers only designated a portion of the record, while Hero designated the entire record. The clerk of court “shall have the duty of preparing the record on appeal.” La. C.C.P. art. 2127. Further, in such cases where there are differing designations by the parties, “the clerk shall prepare the record on appeal as so directed.” La. C.C.P. art. 2128. Here, facing conflicting designations by Hero and the Hoopers, the trial judge ordered the clerk to produce the entire record for appeal. We do not find that production of the entire record was in error. The Hoo-pers filed a myriad of pleadings, including four amended petitions, and have changed the bases of their claims many times over the course of these proceedings. Without the entire record, it would be extremely difficult to unravel the facts and several complex issues in this case, a difficulty compounded by the appellants’ apparent inability to present straightforward and consistent arguments.

VII

Having disposed of the assignments of error on appeal, we now turn to an outstanding issue in this case, which can be satisfactorily addressed by the trial la-judge on remand. Despite an adjudication of ownership and boundary lines, neither the original nor the amended judgment in this case set forth a particularized description of the property in question. “All final judgments which affect title to immovable property shall describe the immovable property affected with particularity,” La. C.C.P. art.1919; see also La. C.C.P. art. 2089 (Description required of immovable property affected by judgments or decrees). The judgment must include the legal description of a property, with reference to- landmarks such as roads, benchmarks, or other monuments which can be located, or a survey commencing at some established point. See Deano v. Brouillette, 94-1856, p. 8 (La.App, 4 Cir. 11/16/95), 664 So.2d 1283, 1287; Martin v. Brister, 37,011, pp. 6-7 (La.App. 2 Cir. 7/23/03), 850 So.2d 1106, 1111 (internal citation omitted). The purpose of this requirement is “to ensure that the public in general, and title examiners, successful litigants, officials charged with executions of judgments and surveyors in particular, accurately can deal with the immovable property.” Deano, 94-1856, p. 8, 664 So.2d at 1287 (internal citation omitted). The failure to describe a property, however, does not nullify or affect the judgment rendered. See Fields v. Etheridge, 487 So.2d 551, 552 (La.App. 4th Cir.1986).

In situations where a particularized description has been lacking, and where the description was discernable from the record, appellate courts have addressed the merits, but either amended the judgment to include such description, see, e.g., id., 487 So.2d at 552-53, or remanded to the trial court for amendment. See, e.g., Young v. Tolintino, 44,631, pp. 12-13 (La.App. 2 Cir. 12/2/09), 26 So.3d 835, 841-42.

The record before does contain particularized descriptions of the property in question, but considering that the judgment in this case fixed the boundary lines and enlarged each lot by 12.077 feet, thereby altering the existing legal descriptions, we do not find it appropriate to simply amend the judgment. Cf. Cusimano, 10-0477, pp. 15-16, 55 So.3d at 941-42 (judgment did not alter measurements of property therefore court amended judgment to include legal description from title); George M. Murrell Planting, 06-1341, pp. 16-17, 970 So.2d at 1088 (plaintiff adjudicated owner of property by title and court amended judgment to include legal description from said title).

Accordingly, we remand to the trial court for compliance with La. C.C.P. art. 1919. In order to determine an accurate legal description in light of the new boundary lines, the trial judge may wish to appoint a surveyor for this purpose. See La. C.C.P. art. 3692.

CONCLUSION

We find, as a matter of law, that the trial judge erred by allowing the improper cumulation of possessory and petitory actions. We also find that no genuine issue of material fact exists with respect to the ownership of the property 12Sor the boundaries thereof and therefore the partial summary judgment in favor of Hero, and which dismissed the Hoopers’ claims (with exception of the trespass claims) with prejudice, was proper.

DECREE

We amend the judgment to delete that portion relating to the possessory claims of James and Patsy Hooper and, as amended, affirm the remainder of the judgment in favor of Hero Lands Company. We remand to the trial court for compliance with La. C.C.P. art. 1919 and for further proceedings on the appellants’ trespass claims against Hero and the other defendants.

AMENDED; AFFIRMED AS AMENDED; REMANDED.

      .- Although filed as a summary judgment, the trial judge rendered a partial summary judgment. See La. C.C.P. art. 966 E ("A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties.”). And the judge then designated the judgment as final for purposes of immediate appeal. See La. C.C.P. art. 1915 B(l). Earlier however, we did dismiss the Hoopers’ appeal with regard to the grant of partial summary judgment in favor of Hugh McCurdy III and Plaquemines Parish Government because those judgments were not designated as final for the purposes of appeal. See La. C.C.P. arts, 966 E; 1915 A(3), B; MR Pittman Group LLC v. Plaquemines Parish, 15-0395 (La.9/16/15), 176 So.3d 549.

      . La. Civil Code art. 789 provides that a boundary “may be fixed judicially or extraju-dicially” and "[i]t is fixed extrajudicially when the parties, by written agreement, determine the line of separation between their lands with or without reference to markers on the ground.” La. Civil Code art. 795 provides that "[w]hen the boundary is fixed extrajudi-cially, the agreement of the parties has the effect of a compromise.”

      . Although the Louisiana Supreme Court denied writs in this case, it did state that its denial did not preclqde the applicant from bringing a subsequent boundary action. See Harvey v. Harvey, 347 So.2d 246 (La. 1977).

      . This is how the statute read at the time the partial summary judgment was rendered. It has since been amended, effective January 1, 2016. See 2015 La. Acts 422.

      . This section has since been amended. See n. 4, ante.

      . See n. 4, ante.

      .We note that although the Hoopers consistently raised this argument in their several petitions, they curiously did not raise it in their appellate brief and even more bafflingly, denied this as their position during oral argument before us. Nevertheless, because we find this to have been one of their core claims to the surplus property, we address it here.

      . We note that these cases both relied on the now-repealed provision of the former Dart Louisiana Code of Practice, article 462.36 [§ 2036] (1942 Ed.).

      . The substance of former Article 851 does not appear in the current Civil Code, and therefore apportionment, as a statutory rule, no longer exists. It is likely, however, that the legislature was aware of the need for greater flexibility in situations where excess property must be distributed, and that an equal division between the parties may not always present the just or commonsense solution. See, e.g., Lucas v. Asset Realization Co., 51 So.2d 652, 657 (La.App.Orl.1951) (it is not always obligatory to divide a surplus of property between the parties in all circumstances, despite the statutory mandate of La. Civil Code art. 851).

      . We do note, however, that despite the Hoopers’ consistent acknowledgment that the 120.77 feet fell between Lots 26 and 35, during oral argument before us they asserted, for the first time, that the surplus property was actually part of Lot 25, and was therefore completely outside the ten lots. There has been no evidence presented in support of this claim and because it is contradictory to every preceding argument, we do not give it any consideration on the merits.

      . In addition to the assignments addressed in this Part, the appellants also claim that the trial judge erred by: (1) failing to hear full argument during the summary judgment hearing; (2) failing to consider the "proof” in the Hoopers’ Motion for Reconsideration which showed that Hero’s property only extended a maximum of 1728 feet (nine arpents) from the eastern border of Lot 35 and thus all the surplus property fell within Lot 26; and (3) failing to consider the Hoopers' Motion for a New Trial when it was filed timely. These claims, however, while included as assignments of error, are not briefed, and we therefore do not consider them. See Uniform Rules, Courts of Appeal, Rule 2-12.4 ("All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.”).

      . Furthermore, even though the trial judge rendered judgment on the Hoopers' possesso-ry claims, albeit improperly, he then proceeded to rule on the petitory claims in Hero’s favor, negating any favorable judgment for the Hoopers on the issue of possession. Clearly, then, the judge did not intend to give any substantive effect to the possession ruling.

      . The Hoopers sought review by supervisory writ of the trial judge's ruling ordering production of the entire record. This court denied writs, finding that the Hoopers had an adequate remedy on appeal. See Hooper v. Hero Lands Co., 15-0051 (La.App. 4 Cir. 4/23/15) (unpub’d).

      . Appellate courts have also found that a judgment lacking a particularized description of the affected property did not constitute a final, appealable judgment and therefore declined to address the merits. See, e.g., Morgan v. Pardue, 15-0149, pp. 4-6 (La.App. 3 Cir. 10/7/15), 175 So.3d 1053, 1056-58; Goal Properties, Inc. v. Prestridge, 14-422, pp. 4-5 (La.App. 3 Cir. 11/5/14), 150 So.3d 610, 613-14. Notably, however, the judgments in these cases were deficient for additional reasons other than noncompliance with La. C.C.P. art.1919.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    BUCK TOWN CONTRACTORS & CO. v. K-BELLE CONSULTANTS, LLC, Aegis Security Insurance Co., and New Orleans Jazz & Heritage Festival and Foundation, Inc.
    No. 2015-CA-1124.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 2016.

      Todd G. Crawford, Michael J. Thompson, Jr., Fowler Rodriguez, Gulfport, MS, for PlaintiffiAppellant.
    Ronald W. Morrison, Jr., MORRISON & MORRISON, PLC, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

I,The case before us concerns the requirements of Louisiana’s Private Works Act (“PWA”), La. R.S. 9:4801, et seq. For the reasons that follow, we amend the judgment, and as amended, affirm in part; additionally we remand for further proceedings.

The defendant, the New Orleans Jazz & Heritage Festival and Foundation, Inc. (“NOJHF”), is the owner of the Jazz & Heritage Center located at 1225 Rampart Street in New Orleans. NOJHF restored the Center between 2013 and 2014 (“the project”). NOJHF initially hired Donahue Favret Contractors, Inc. (“Donahue”) to be the general contractor on the project. This contract is dated 4 June 2013. A notice of contract and attached bond, as required by La. R.S. 9:4811, were filed and recorded with the Orleans Parish Recorder of Mortgages on 12 July 2013.

For reasons not disclosed in the appellate record, NOJHF later entered into a contract with the defendant, K-Belle Consultants, L.L.C. (“K-Belle”) on 24 July 2014, by which K-Belle assumed the position of general contractor on the project. |2This subsequent contract was not filed and recorded with the Orleans Parish Recorder of Mortgages.

The plaintiff, Buck Town Consultants & Co. (“Buck Town”), entered into a subcontract with K-Belle to perform, inter alia, drainage and concrete work on the project. It is alleged that Buck Town abruptly abandoned the project, forcing K-Belle to find another subcontractor to finish the project. Buck Town claims that it did not abandon the project and was not paid for any of the work it actually performed.

On 6 January 2015, Buck Town' sent a “Notice of Claim and Privilege” (“notice”) to NOJHF, as owner of the project, notifying it of Buck Town’s claim under the PWA. On 28 January 2015, Buck Town filed suit against K-Belle, K-Belle’s surety, NOJHF, and NOJHF’s surety, asserting a cause of action under the PWA and other causes of action. Attached to the petition was the notice Buck Town previously sent to NOJHF. The record fails to reflect that the notice was filed and recorded with the Orleans Parish Recorder of Mortgages.

On 12 February 2015, NOJHF filed a notice of termination regarding its contract with Donahue. No notice of the filing was given to Buck Town. Thereafter, NOJHF filed a certificate of substantial completion on 3 March 2015 in connection with its separate contract with K-Belle. Again, no notice of the filing was given to Buck Town. Both notices were filed in the Orleans Parish mortgage records.

|aOn 5 May 2015, NOJHF filed peremptory exceptions of no cause of action and no right of action seeking to be dismissed from the suit because Buck Town did not secure its claims against it. It admits that the exceptions were Buck Town’s first notice of the notice of termination and certificate of substantial completion. The trial court granted the exceptions on 26 June 2015, thereby dismissing NOJHF from the lawsuit. This timely appeal followed.

This case concerns the requirements of the PWA, a question of law. As such, we apply a de novo standard of review. Southern Tool & Supply, Inc. v. Beerman Precision, Inc., 03-0960, p. 6 (La.App. 4 Cir. 11/26/03), 862 So.2d 271, 277.

In Byron Montz, Inc. v. Conco Construction, Inc., 02-0195, pp. 6-8 (La.App. 4 Cir. 7/24/02), 824 So.2d 498, 502-03, we stated:

The Private Works Act was enacted to facilitate construction of improvements on immovable property and does so by granting to subcontractors, among others, two rights to facilitate recovery of the costs of their work from the owner with whom they lack privity of contract. The first right is a statutory “claim”—the right to personally sue the owner for the amount that is owed—that is provided by La. R.S. 9:4802(A)(1); particularly, this statute provides that subcontractors have a claim against the owner and a claim against the contractor to secure payment of the price of their work. The second right is the privilege provided by La. R.S. 9:4802(B), which states that “[t]he claims against the owner shall be secured by a privilege on the immovable on which the work is performed.”
The validity of the claim and privilege granted a subcontractor by La. R.S. 9:4802 is limited by La. R.S. 9:4823(A), which provides that “a claim against the owner and the privilege securing it granted by R.S. 9:4802, or a claim against the contractor granted by R.S. 9:4802 is extinguished if: (1) The claimant or holder of the privilege does not preserve it as required by R.S. | ¿9:4822.” La. R.S. 9:4822 provides for two separate delay periods. Depending on whether the notice of contract between the owner and the general contractor was properly and timely filed, an unpaid subcontractor has thirty days under La. R.S. 9:4822(A), or sixty days under La. R.S.9:4822(C) after the filing of a notice of termination of work within which to file his statement of claim and privilege. Hence, failure to file a statement of claim timely results in the extinguishment of the claims and privilege under R.S. 9:4823(A).
Given the special nature of those two rights, those rights must be strictly construed, against those,to whom they are accorded (subcontractors) and in favor of the owner, and there: must be strict compliance with the requirements of the Private Works Act. Metropolitan Erection Co., Inc. v. Landis Construction Co., Inc., 627 So.2d 144 (La.1998). [Emphasis supplied.]

The jurisprudence uniformly holds that a subcontractor has the burden of proving that its statement of claim was timely filed, and unless it meets this burden cannot avail itself of any of the rights provided under the PWA. Montz, 02-0195, p. 8, 824 So.2d at 503, citing, Marshall Achord Electrical Contractor, Inc. v. Zeagler, 527 So.2d 51, 53 (La.App. 3d Cir. 1988). Any right a subcontractor would have had under the PWA against the owner is lost when it fails to timely file a statement of claim to preserve that privilege as required by La. R.S. 9:4822 A or C. Id. According to the 1981 Comments to La. R.S. 9:4822 G, the purpose of filing a lien affidavit “is to give notice to the owner (and contractor) of the existence of the claim and to give notice to persons who may deal with the owner that a privilege is claimed on the property,.. .Technical defects in the notice should not defeat the claim as long as the notice is adequate to serve the purposes intended.” Jefferson Door Co., Inc. v. Cragmar Construction, L.L.C., 11-1122, p. 5 (La.App. 4 Cir. 1/25/12), 81 So.3d 1001, 1004.

| RBecause the PWA is in derogation of general contract law, it must be strictly construed. Hibernia National Bank v. Belleville Historic Development, L.L.C., 01-0657, p. 7 (La.App. 4 Cir. 3/27/02), 815 So.2d 301, 305. However, it should not be construed so as to defeat the purpose of the statute, which is to protect materialmen, laborers and subcontractors who engage in construction projects. Authement’s Ornamental Iron Works, Inc. v. Reisfeld, 376 So.2d 1061, 1064 (La.App. 4th Cir.1979).

Because the contract between NOJHF and K-Belle was not recorded, Buck Town had sixty days to file its statement of claim and privilege from the filing of a notice of termination of work or the substantial completion, if a notice of termination was not filed. Because we are not considering the notice of termination of work filed by Donahue, with whom Buck Town did not contract, Buck Town had until 2 May 2015 (sixty days after 3 March 2015) to file its lien against the property.

Unquestionably, Buck Town did not file its lien within the time delay provided by La. R.S. 9:4822 C.

Pursuant to La. R.S. 9:4822 K, Buck Town gave notice to NOJHF before a notice of substantial completion was filed with the Recorder of Mortgages. As such, NOJHF was mandated by the PWA to give notice to Buck Town within three days of such filing. La. R.S. 9:4822 L(l). Here, both were recorded but no notice was given to Buck Town as required by the statute. Failure to give notice within ten days of the commencement of the period for preservation of rights under the IfiPWA makes the owner, here, NOJHF, liable for all costs and attorney’s fees for establishment of the claim or privilege. La. R.S. 9:4822 L(2).

NOJHF admits that it failed to comply with the provisions of La. R.S. 9:4822 and that notice was first given after the sixty days had run. Therefore, we find that, while Buck Town was possibly prevented from timely filing its claim or privilege, we also find that it failed to properly preserve its claim or privilege.

In Byron Montz, Inc., supra, 02-0195, pp. 8-9, 824 So.2d at 503, we further stated:

We understand Montz’s first claim to be that the Legislature extended by implication the time period for filing a statement of claim when an owner fails to comply with the notice requirement under R.S. 9:4822(L). No statutory basis exists for either altering or extending the time period for a claimant to file a statement of claim under the Act, and we decline to judicially craft such an extension. Indeed, as IMS points out, the time periods set forth in the Private Works Act are peremptive periods. Landis, supra. [Metropolitan Erection Co., Inc. v. Landis Construction Co., Inc., 627 So.2d 144 (La.1993) ]. Specifically, the Louisiana Supreme Court explained:
The Legislature, in adopting the Act, granted a special right in favor of specified claimants, but limited the time for enforcing that right in the manner prescribed in the Act, after which the right becomes extinguished and passes out of existence. The Legislature clearly intended to extinguish in short order the special rights of those claimants who did not file their privileges and their actions within the specified time limitations. The Act thus balances the private interest in asserting claims against the public interest in limiting special rights. Landis, 627 So.2d at 148. [Emphasis supplied.]

17For these reasons, we affirm the judgment of the trial court that dismissed Buck Town’s direct claims against NOJHF pursuant to the PWA, finding that Buck Town failed to preserve its privilege against the owner of the project.

We also find, however, that NOJHF is liable for all costs and attorney’s fees for establishment of the claim or privilege, pursuant to La. R.S. 9:4822 L(2), as it admits it failed to comply with the provisions of La. R.S. 9:4822. Accordingly, we amend the judgment and remand the matter to the trial court for a determination of reasonable attorney’s fees and costs.

AMENDED; AFFIRMED AS AMENDED; REMANDED.

      . This issue, among others, remains with the trial court and is not a part of this appeal.


text:
    STATE of Louisiana v. Sherman SINGLETON.
    No. 2015-K-1099.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 2016.

      Leon Cannizzaro, District Attorney, Matthew Kirkham, Parish of Orleans, New Orleans, LA, for Respondent.
    Derwyn Bunton, Orleans Public Defenders, New Orleans, LA, for Relator.
    (Court composed of Judge PAUL A. BONIN, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   PAUL A. BONIN, Judge.

12The district judge appointed the Orleans Public Defenders Office and Derwyn Bunton, who is the District Defender, to act as counsel to Sherman Singleton, a prisoner, in his pending post-conviction proceedings. Mr. Bunton objected to the appointments on numerous grounds, filed a motion to withdraw, and ultimately applied to us to exercise our supervisory jurisdiction to review the matter.

In aid of our consideration of his application, we requested clarification from the district judge specifically about her appointment of Mr. Bunton. By her per curiam, she clarified that Mr. Bunton had not been appointed in his capacity as the District Defender for Orleans Parish but as a practicing attorney who shares in the professional obligations of lawyers to undertake the representation of the indigent.

In further aid of our review, we directed the trial judge to establish an evidentiary record from which we could determine the status of the pending still-open evidentiary hearing on the post-conviction claim and by which Mr. Bunton could support with evidence his contentions that his appointment would result in a conflict of interest due to the earlier involvement in pretrial px*oceedings of a then-employee of the Orleans Indigent Defenders Program or that he has “good cause” under Rule 6.2 of the Rules of Professional Conduct to avoid the appointment.

In the meantime, we also directed that the district court’s entire record be filed with us. We granted, docketed the case for oral argument, and now find as a matter of law that that the trial judge erred by appointing the Orleans Public | .¡Defenders Office to represent Mr. Singleton in his non-capital post-conviction case. We also find that, because Mr. Bunton demonstrated “good cause” to decline the appointment in his personal capacity, the district judge abused her discretion in denying his motion to withdraw as Mr. Singleton’s counsel. Accordingly, we reverse the rulings denying the motion to withdraw filed by the Orleans Public Defenders Office and Derwyn Bunton and remand this matter for further proceedings, including the appointment of substitute counsel for Sherman Singleton.

We explain our decision below.

I

We begin generally with an overview of the proceedings as memorialized in the district court record and then turn specifically to the circumstances which gave rise to the district judge’s appointment of the district public defender’s office and of Mr. Bunton.

A

In 1990, Sherman Singleton was indicted for the second degree murder of Bruce Vappie. At his arraignment early in the new year, Jeffrey Smith, an employee of the office then known as the Orleans Indigent Defender Program (“OIDP”), was appointed to represent him. But, by March 11, 1991, Blake Williams, Mr. Singleton’s newly employed, counsel, was substituted as his attorney of record. In the summer, Kevin Boshea enrolled as an additional private attorney for Mr. Singleton. Mr. Boshea, however, withdrew from the representation in August 1991, and Mr. Williams continued alone in representing Mr. Singleton. From the time of arraignment up to the trial, several pretrial motions were filed and decided.

| ¿Trial by a jury of twelve commenced and concluded on October 16, 1991. The verdict of the jury was “guilty as charged.”

Mr. Williams timely filed a motion for new trial on Mr. Singleton’s behalf. The trial judge conducted an evidentiary hearing on the motion for new trial and denied it on April 3, 1992. On that same date, having waived delays, Mr. Singleton was sentenced to life-without-parole. A motion for appeal was timely filed. We affirmed his conviction and sentence. See State v. Singleton, 622 So.2d 874 (La.App. 4th Cir. 1993) (Table).

In August 2003, Clarke Beljean enrolled as an attorney for Mr. Singleton. The minutes show that on June 29, 2004, “the defense filed supplemental for post-conviction relief,” which was set for hearing one month later. The hearing was postponed and rescheduled several times. Another attorney, Lauren Williams, had also enrolled as Mr. Singleton’s counsel, but she withdrew in September 2004.

On October 21, 2004, Dwight Doskey, who was apparently retained by Mr. Singleton’s family, enrolled as counsel. Following numerous continuances at the request of Mr. Singleton’s counsel, the post-conviction hearing commenced on March 14, 2008; after hearing from one witness, Cassandra Cheatham, the hearing was recessed until April 18, 2008. For a variety of reasons, however, the hearing was not resumed until December 15, 2008, at which time testimony was received from Hans Sinha and Mr. Williams, the trial attorney.

IfiThe minute entry for April 16, 2009, notes that “the court is waiting on one last piece of evidence to be provided.” The post-conviction hearing was then set to resume on May 15, 2009. Again for a variety of reasons," however, the' hearing was not resumed and on March 26, 2010, Mr. Doskey withdrew as Mr. Singleton’s counsel and the district judge appointed the Louisiana Appellate Project to represent Mr. Singleton. Apparently the Louisiana Appellate Project took no action on its appointment and, on February 7, 2011, the district judge appointed Kevin Chris-tianson to represent Mr. Singleton.

In October 2011, Mr. Christianson filed for a competency hearing. On December 13, 2011, the district judge, after hearing the opinions of two mental health professionals, found that Mr. Singleton was competent to assist his counsel in the post-conviction proceedings.

Mr. Singleton later filed a motion to recuse the district judge, which motion she denied on October 18,2013. Mr. Singleton sought supervisory review with us and with the Louisiana Supreme Court. We denied his application, but, importantly for our purposes, we directed the district judge, in view of Mr. Singleton’s competency, to conduct a hearing on his outstanding post-conviction relief application within sixty days. See State v. Singleton, unpub., 13-1619 (La.App. 4 Cir. 1/14/14), writ den. 14-0377 (La.10/31/14), 152 So.3d 146.

Between the time of our ruling and the Supreme Court’s action, Mr. Christianson was allowed to withdraw as Mr. Singleton’s attorney without objection from Mr. Singleton. On that same date, February 21, 2014, “the court appointed OPD” and, at Mr. Singleton’s request, stayed the proceedings pending the Supreme Court’s ruling on the recusal issue,

B

Despite the appointment of the Orleans Public Defenders Office (“OPD”), no action was taken in the district court. We became aware of the delay on August 18, 2015 because Mr. Singleton filed an application for a writ of mandamus with us to compel action, in the district court in accord with our previous directive. We granted the application, ordered the district judge to appoint new counsel, and rule on Mr. Singleton’s pending application within sixty days. See State v. Singleton, unpub., 15-0882 (La.App. 4 Cir. 9/3/15).

On September 8, 2015, a representative of OPD appeared before the district judge and advised that “Mr. Wayne” has been appointed to represent Mr. Singleton. At the status hearing the following date, the district judge and the prosecutor learned for the first time that OPD had filed a motion to withdraw from the appointment on May SO, 201⅛ but had never presented the motion to the district judge. At the same time, Mr. Bunton, the bearer of this news, objected to the appointment of the OPD or anyone in that office as counsel in collateral review proceedings. He also advised that “Mr. Wayne” was “erroneously assigned to this matter.”

A few days later, another representative of OPD appeared before the district judge for the ruling on the OPD’s motion to withdraw. The district judge explained that, in view of our order that she conclude the hearing and rule on Mr. Singleton’s pending application, she was denying the motion. And, besides denying the motion to withdraw, she was appointing “OPD and Derwyn Bunton, | ./personally” to represent Mr. Singleton. From those rulings, Mr. Bunton filed his application for supervisory writs, including his request that the district judge’s rulings be stayed pending our review.

2

Upon receipt of the application, we first ordered that the district court record, including the transcripts of proceedings held on eleven dates, be filed with us. We then extended, for the first time, the date by which the district judge must comply with our previous directive to rule on the post-conviction application; we also denied Mr. Bunton’s request for a stay of the proceedings. On November 10, 2015, we directed Mr. Bunton, as the relator, to furnish copies of his application and related materials to Mr. Singleton, and we directed our clerk to include the prisoner on the list of persons entitled to notification of proceedings before us.

On December 17, 2015, having received the previously ordered transcripts, we directed that they be furnished to the prisoner. We requested a supplemental per curiam from the district judge respecting clarification whether her appointment of Mr. Bunton as counsel to the prisoner was in connection with his duties and responsibilities as the District Defender, or if her appointment of him was unrelated to his public responsibilities and solely as a member of the bar personally eligible for pro bono appointment. She complied and clarified that it was limited to his role as a member of the bar eligible for pro bono appointment.

We also directed the district court to convene an appropriate status conference on-the-record in which Mr. Bunton and Mr. Singleton shall participate for the purpose of (1) identifying any evidentiary hearings in the PCR proceeding for which a transcript is not available, (2) identifying the witnesses who remain to be called for testimony in the post-conviction proceeding, (3) determining whether 18the prisoner’s ineffective-assistanee-of-counsel claim extends to Jeffrey Smith, Esq., or is limited to his retained counsel, Blake Williams, Esq., and (4) determining whether the pri- or involvement as a counsel to Mr. Singleton of now-Judge Laurie White merits a recusal hearing.

In addition, we directed the district judge to conduct an evidentiary hearing to permit Mr. Bunton to establish (1) the factual basis for his assertion that in order to represent the prisoner he must criticize the performance or conduct of Mr. Smith, (2) that Mr. Smith has been actually employed at any time by the Orleans Public Defenders Office, (B) that the Orleans Public Defenders Office in legal contemplation succeeds to, and does not merely replace, the Orleans Indigent Defender Program, and, (4) that he has “good cause” under Rule 6.2 of the Rules of Professional Conduct to avoid the appointment.

We vacated the prior deadlines by which the district judge was ordered to rule on the post-conviction application because of unforeseen delays in connection with Mr. Bunton’s filing on behalf of Mr. Singleton a second motion to recuse Judge Pittman. The motion was referred to a different district judge and denied. And we ordered the production of the transcripts of the status conference and of the evidentia-ry hearing filed with us.

II

At the outset, and importantly for the purposes of our discussion in Part III, post, we acknowledge that a prisoner in a post-conviction proceeding enjoys no constitutional right to appointed counsel. See Coleman v. Thompson, 501 U.S, 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (“There is no constitutional right to an attorney in state post-conviction proceedings.”). But, on the other hand, we emphasize that once a “court orders an evi-dentiary hearing on the merits of a [post-conviction] claim,” it 19“shall appoint counsel for an indigent petitioner ...” La. C.Cr.P. art. 930.7 C. Here, the evidentia-ry hearing was already underway when the district court first appointed counsel for Mr. Singleton. Thus, there is no question that Mr. Singleton has a statutory right to appointed counsel.

III

We turn now to first address the well-founded legal contention that the district judge is without authority to appoint the Orleans Public Defenders Office to represent Mr. Singleton in his post-conviction proceedings.

A

In 2007, the Louisiana legislature, in an attempt to satisfy the constitutional mandate requiring “a uniform system for securing and compensating qualified counsel for indigents,” see La. Const, art. 1, § 13, implemented comprehensive statewide standards and guidelines for indigent defense through the Louisiana Public Defender Act (“Act”). See 2007 La. Acts 307, § 1 (eff. August 15, 2007) see also La. R.S. 15:141-184. The accompanying legislative findings provide, in relevant part, that the statewide public defender system is to be free from “undue political and judicial interference,...” La. R.S. 15:142 B(2). See also State v. Brasley, 09-1847 (La.8/24/09), 17 So.3d 941 (highlighting the autonomy afforded to the public defender’s office in providing indigent defense counsel without judicial interference). In accordance with this finding, both the Louisiana Public Defender Board and the individual district public defenders are given substantial latitude to determine the delivery of public defender services. See La. R.S. 15:147 and La. R.S. 15:161. Of course, this independence is subject to the. .inherent regulatory authority of the Louisiana Supreme Court and certain statutory and ethical obligations. See La. R.S. 15:147 A; La. Const, art. 5, § 5; Brasley, 09-1847, 17 So.3d 941. Generally then, .when a defendant is afforded indigent defense services, it falls to the chief public, defender, not the district court, to determine which of the staff attorneys will represent the accused. See generally La. R.S. 15:161 E.

I nB

A more in-depth reading of the Louisiana Public Defender Act supports Mr. Bunton’s argument that the appointment of the OPD to a non-capital post-conviction proceeding goes beyond statutory authority.

The Act specifically requires the appointment of a public defender “[i]n a capital case in which the trial counsel was provided to an indigent defendant and in which the jury imposed the death penalty” and must not only represent the accused on direct appeal, but also “in any state post-conviction proceedings,, if appropriate.” La. R.S. 15:178 (Appointment of appellate and post-conviction counsel in death penalty case); see also La. R.S. 15:169 (Representation of capital defendants). The foregoing provisions “are intended for the sole and exclusive purpose of providing legal services and related expenses for capital defendants who have been sentenced to death and are not intended to confer substantive or procedural rights not otherwise provided by law.” La. R.S. 15:182 (emphasis added). These are the only provisions contained in the Act which provide for public defender services in collateral review proceedings. Mr. Singleton, however, was not tried in a capital case, nor was the death penalty imposed. If the legislature desired to allow for the appointment of public defenders in non-capital post-conviction cases, it could have easily done so.

It' follows, therefore, that Mr. Singleton’s post-conviction case does not fall into a category for which the Louisiana Public Defender Act provides for public defender services. Consequently, we find that to the extent that the district judge appointed the OPD to furnish legal representation to Mr. Singleton in his non-capital post-conviction case, this constitutes legal error and must be reversed.

JlF

We next address whether that resolution precludes the appointment of Mr. Bunton in his personal capacity as a member of the Louisiana bar eligible for pro bono appointment, unrelated to, and regardless of, his status as District Defender of the OPD. Although we conclude that the legal - impediment to the appointment of the OPD does not extend to the employees of the OPD, including Mr. Bunton, in their personal capacities because of their professional ethical obligations, we nonetheless find that in this specific case the district judge abused her discretion in not permitting Mr. Bunton to withdraw from the representation of Mr. Singleton. We reject Mr. Bunton’s claim that his appointment would violate conflict-of-interest rules but agree that he demonstrated “good cause” to avoid the appointment.

A

Mr. Bunton first claims that his appointment constitutes a conflict of interest, as Mr. Singleton was previously represented by Jeffrey Smith through the Orleans Indigent Defender Program, the office which preceded the OPD.

Dannielle Berger, the Director of Administration for OPD, testified without contradiction that OPD is in essence, the successor of OIPD, as OPD maintains all the previous case flies and documents, and retained the same employees and tax identification number. Ms. Berger also testified that Jeffery Smith worked for the OIDP from 1996 to 2006. She noted that OPD still has access to, and maintains, client files from the OIPD’s tenure.

A criminal defendant has a constitutional right to effective assistance of counsel pursuant to the Sixth Amendment to the United States Constitution and Article 1, § 13 of the Louisiana Constitution. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Peart, 621 So.2d 780, 783 (La. 1993). This encompasses the right to be represented by conflict-free counsel. See Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Generally, a conflict of interest issue arises in cases of joint representation, where an attorney owes conflicting duties to other defendants. See Cuyler v. Sullivan, 446 U.S. 335, 351, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (Brennan, J., concurring); see also State v. Garcia, 09-1578, p. 37 (La.11/16/12), 108 So.3d 1, 28.

We do recognize that, for conflict of interest purposes, “Indigent Defender Boards are ... treated as the equivalent of private law firms to effectuate a defendant’s Sixth Amendment right to effective assistance of conflict-free counsel and the ethical obligation of an attorney associated with other lawyers in a firm to avoid representing a client when any one of them practicing alone would be prohibited from doing so....’” Garcia, 09-1578, p. 38, 108 So.3d at 28 (quoting State v. Connolly, 06-0540 (La.6/2/06), 930 So.2d 951, 954, n. 1); see also La. Rules of Professional Conduct, Rule 1.10(a). That notwithstanding, such representation does not rise to the level of a constitutional violation absent an “actual” conflict of interest, one which adversely affects counsel’s performance. See Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002); Garcia, 09-1578, p. 45, 108 So.3d at 33.

As mentioned previously, the district court minutes reveal that Jeffrey Smith represented Mr. Singleton once, at arraignment, and did not appear on his behalf at any other time. And, subsequent to Mr, Smith’s withdrawal, it appears that Mr. Singleton employed only private counsel to represent him. Although Mr. Bun-ton claims that in order to raise and argue ineffective assistance of counsel he would be forced to attack the performance of a former member of his office, we find it unlikely that an ineffectiveness claim rests on the actions of counsel at 114arraignment. Moreover, according to the evidentiary hearing held on April 8, 2016, Mr. Smith’s employment with OIDP ended in 2006. Mr. Bunton did not begin his employment as District Defender until 2009. The lack of overlap in employment and Mr. Smith’s brief representation of Mr. Singleton suggests that no actual conflict exists which would adversely affect Mr. Bunton’s performance.

B

Despite the lack of an actual conflict of interest, we find that Mr. Bunton has nevertheless demonstrated “good cause” under the circumstances presented why his continued personal appointment as a member of the bar eligible for pro bono appointment should not be upheld.

At the aforementioned evidentiary hearing on April 8, 2016, James Thomas Dixon, the chief public defender for the state, testified about the substantial workload of a district public defender and stated that, while some district defenders are permitted to have private practices, they are prohibited from utilizing public resources in furtherance of such. Mr. Dixon also testified that Mr. Bunton, as District Defender for Orleans Parish, is a full-time employee and is not allowed to have a private practice. Mr. Dixon expressed the unchallenged observation that if Mr. Bun-ton maintained a caseload of private clients and performed his duties as District Defender, he would not be able to do either “effectively.”

Mr. Bunton testified as well. He testified that he works full-time as the District Defender and maintains a staff of approximately 100 people. He stated that he does not maintain a private practice nor does he possess any resources apart from those at the OPD, such as personal malpractice insurance or his own office supplies.

Iigl

As a general rule, attorneys barred in the state of Louisiana have a professional obligation to serve and represent indigent clients “unless the appointment is unreasonable and oppressive.” State v. Clark, 624 So.2d 422, 424 (La.1993) (citing State v. Clifton, 247 La. 495, 172 So.2d 657 (1965)). See also La. Rules of Professional Conduct, Rule 6.1 (Voluntary Pro Bono Publico Service). Appointed attorneys are entitled to be reimbursed for out-of-pocket expenses and overhead costs, but need not receive a fee for their services, as long as the services do not reach “unreasonable levels.” State v. Wigley, 624 So.2d 425, 429 (La.1993). The Rules of Professional Conduct further provide that “[a] lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause.... ” La. Rules of Professional Conduct, Rule 6.2. Some examples of “good 11(icause” are that representation of the client would result in an ethical or legal violation, representation would result in an unreasonable financial burden, or the client and cause is so repugnant to the lawyer as to impair the client-lawyer relationship. See id. Notably, these examples are non-exhaustive.

We first note Mr. Dixon’s testimony, wherein he explained that Mr. Bunton is not contractually allowed to maintain a practice apart from his duties as chief public defender for the OPD. We are as well mindful of Mr. Dixon’s statement that Mr. Bunton, in light of his substantial responsibilities, would not “effectively” be able to represent clients and fulfill his duties as District Defender.

Introduced without objection at the hearing was an affidavit by Mr. Bunton outlining his responsibilities as District Defender and detailing the various challenges facing his office. The OPD and the Louisiana Public Defender Board, like other state-funded agencies, are facing a severe budget crisis. Mr. Bunton predicted that OPD’s projected expenditure for fiscal year 2016 would exceed its budget by nearly one million dollars. Recently, OPD reports it was forced to institute a hiring freeze, despite the existence of vacant staff attorney positions, resulting in an increased workload for the remaining attorneys. As a result, OPD has now begun refusing to represent indigent defendants in certain felony cases, reasoning that its overburdened attorneys cannot effectively comply with constitutional and ethical mandates given current caseloads.

-Ill2

We find, under the particular and specific circumstances presented, that Mr. Bun-ton has demonstrated “good cause” under Rule 6.2 to decline the appointment in this case, as a member of the bar eligible for pro bono service. First, it is clear that his appointment in a personal capacity violates the terms of his employment with the Louisiana Public Defender Board. Second, if Mr. Bunton were to undertake representation of Mr. Singleton, it is possible that he would be prohibited from using any of his office’s resources. Finally, and most importantly, considering Mr. Bunton’s extensive duties as head of an office facing increasing caseloads amid a shrinking budget, his appointment would likely violate several ethical rules, and perhaps even his constitutional duties as counselor. See La. Rules of Professional Conduct, Rules 1.1, I.3, 1.7; see also U.S.C.A. Const. Amends. VI, XIV; La. Const. art. 1, § 13; Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“[Tjhe right to counsel is the right to the effective assistance of counsel.”) (citation omitted) (emphasis added).

Put simply, we find that maintaining Mr. Buntoris appointment would constitute a severe personal and professional hardship and imposition upon him which would likely adversely affect his ability to render attentive representation to 11sMr. Singleton at this time. And we this find that the district judge abused her discretion in denying his motion to withdraw.

We do emphasize, however, that our opinion should not be read to give public defenders carte blanche to decline any and all appointments in their personal capacity, simply because of their status as public employees; declining a pro bono appointment should only be done for the gravest of reasons.

V

As a consequence of our decision, it is necessary to remand this matter to the district court so that the district judge will appoint an attorney for Mr. Singleton and afford the substituted counsel sufficient time to prepare for concluding the ongoing evidentiary hearing. And with respect to that hearing, we clarify that our earlier mandamus directing the re-start of the post-conviction evidentiary hearing by a date certain is fully recalled and we note that the district judge made a good-faith effort to comply with the deadline.

DECREE

The ruling in which the district judge denied the motion to withdraw filed by the Orleans Public Defenders and Derwyn Bunton is reversed. Derwyn Bunton and the OPD are withdrawn as counsel of record for Sherman Singleton. The matter is remanded to the district court for appointment of substitute counsel and for further proceedings.

WRIT GRANTED; REVERSED; REMANDED

      . According to Mr. Singleton’s prior pleadings filed in this court, his original application for post-conviction relief was filed sometime in 1995, although the court minutes do not reflect this.

      . Through December 31, 2008, the presiding judge was the Honorable Dennis Waldron. Following his retirement, on January 1, 2009, the Honorable Robin Pittman became the presiding judge.

      . This motion was filed in the name of '‘Der-wyn Bunton, District Public Defender in and for Orleans Parish, through his assistant, undersigned counsel,” James Harper. The certificate of service claims service "upon the prosecution.” It also appears that no notice was afforded to Mr. Singleton, the client.

      . La.C.Cr.P. art. 930.7 provides:
      A. If the petitioner is indigent and alleges a claim which, if established, would entitle him to relief, the court may appoint counsel.
      B. The court may appoint counsel for an indigent petitioner when it orders an evi-dentiary hearing, authorizes the taking of depositions, or authorizes requests for admissions of fact or genuineness of documents, when such evidence is necessary for the disposition of procedural objections raised by the respondent.
      C. The court shall appoint counsel for an indigent petitioner when it orders an evi-dentiary hearing on the merits of a claim, or authorizes the taking of depositions or requests for admissions of fact or genuineness of documents for use as evidence in ruling upon the merits of the claim.

      . The full text of Article 1, § 13, Rights of the Accused, reads:
      When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.

      . Rule 6.1. Voluntary Pro Bono Publico Service
      Every lawyer should aspire to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this aspirational goal, the lawyer should:
      (a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
      (1) persons of limited means or
      (2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and
      (b) provide any additional services through:
      (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate;
      (2) delivery of legal services at a substantially reduced fee to persons of limited means; or
      (3) participation in activities for improving the law, legal system or the legal profession.

      . Rule 6.2. Accepting Appointments
      A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as;

        (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
      (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
      (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.

      . The affidavit had been previously executed by Mr. Bunton in late 2015 for a hearing in a different section of court.

      . The phenomenon of public defender's offices refusing cases, in New Orleans and beyond, has been recently discussed by several media outlets. See Ben Myers, Orleans Public Defender’s Office to Begin Refusing Serious Felony Cases Tuesday, Times-Picayune, Jan. 11, 2016, available at http://www.nola.com/ crime/index.ssf/2016/0 l/orleans_public_ defenders_to_be.html; John Simerman, New Orleans judge orders release of seven inmates charged with serious felonies because of lack of money for defense, but men will remain jailed pending an appeal, The New Orleans Advocate, Apr. 8, 2016, available at http://www.the neworleansadvocate.com/news/15428394-148 /orleans-judge-orders-seven-inmates-facing-serious-charges-released-for-lack-of-money-to-defend-them; see also John Pfaff, A Mockery of Justice for the Poor, New York Times, Apr. 29, 2016, available at http://www,nytimes. com/2016/04/30/opinion/a-mockery-of-justice-for-the-poor.html?_r=0.

      .In his testimony, Mr. Dixon stated that Mr. Bunton was "expected to do nothing but indigent defense work.” Mr. Singleton's post-conviction case appears to qualify as "indigent defense work” and so it is unclear if Mr. Bunton’s appointment, even in his personal capacity, would constitute a "private practice” for which he would be required to obtain his own office supplies, malpractice insurance, etc.

      . We are confident, however, that Mr. Bun-ton, having provided legal representation to Mr. Singleton since his appointment, intends to fully assist counsel to be substituted for him by promptly sharing his knowledge and insight into Mr, Singleton's post-conviction claims.


author: TERRI F. LOVE, Judge.

text:
    Walter LEE, III v. REGIONAL TRANSIT AUTHORITY OF NEW ORLEANS and Transit Management of Southeast Louisiana.
    No. 2016-CA-0040.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 2016.

      Dennis W. Moore, New Orleans, LA, for Plaintiff/Appellant, Walter Lee, III.
    Terrill W. Boykin, Kriste T. Utley, Ross A. Ledet, Boykin & Utley, New Orleans, LA, for Defendants/Appellees, Regional Transit Authority and Transit Management of Southeast Louisiana.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

laThis appeal arises from the dismissal of plaintiffs suit due to prescription. Plaintiff requested service upon defendants pri- or to the expiration of the prescriptive period. However, service was not effectuated until seven months after the prescriptive period expired. The trial court held that service must be completed within the prescriptive period to interrupt prescription. We find that the trial court did not err, and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On or about December 22, 2011, Walter Lee, III was a passenger on a New Or-leans streetcar when the streetcar operator “jammed on the brakes in order to avoid hitting a vehicle that was attempting to turn onto Canal Street.” Mr. Lee was allegedly “thrown to the floor from his seat,” causing injuries.

On December 21, 2012, Mr, Lee filed a Petition for Damages in First City Court of Orleans Parish against the Regional Transit Authority of New Orleans (“RTA”), Transit Management of Southeast Louisiana, Inc. (“TMSEL”), and John Doe. On December 13, 2013, Mr. Lee’s suit was transferred to Orleans Parish Civil District Court because First City Court lacked jurisdiction over RTA, as a political subdivision. See La. R.S. 13:5104. RTA and TMSEL then filed peremptory exceptions of prescription, no cause of action, and no light of action | scontending that service was not effectuated upon them with the applicable prescriptive period. The trial court found that Mr. Lee’s claims .were prescribed because the prescriptive period is not interrupted by incomplete service. Approximately a year after the trial court’s ruling, Mr. Lee filed a Motion for Rehearing or Out of Time Appeal asserting that he never received the trial court’s judgment. The trial court granted Mr. Lee’s rehearing and denied him relief, noting that the notice of judgment “was returned to the Court as ‘not deliverable as addressed,’ and its return receipt was apparently filed into the record with no further action taken.” Mr. Lee then filed a Motion for Devolutive Appeal.

STANDARD OF REVIEW

“[A] defendant may raise the exception of prescription in the trial court at any time prior to the matter’s submission after trial.” Scott v. Zaheri, 14-0726, p. 7 (La.App. 4 Cir. 12/3/14), 157 So.3d 779, 784. “Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception,” Scott, 14-0726, p. 7, 157 So.3d at 784-85. “If prescription is evident on the face of the pleadings, however, the burden shifts to the plaintiff to show that the action has not prescribed.” Id., 14-0726, pp. 7-8, 157 So.3d at 785.

“A judgment granting a peremptory exception is generally reviewed de novo, because the exception raises a legal question.” Id., 14-0726, p. 8, 157 So.3d at 785. However, “[w]hen evidence is introduced and evaluated at the trial of a peremptory exception, we must review the entire record to determine whether the trial court manifestly erred with its factual conclusions.” Id. “If the findings are | reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Carter v. Haygood, 04-0646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267.

PRESCRIPTION

“Delictual actions are subject to a Iterative prescription of one year.” La. C.C. art. 3492. The period of “prescription commences to run from the day injury or damage is sustained.” Id. “Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obli-gor, in a court of competent jurisdiction and venue.” La. C.C. art. 3462. “If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.” Id.

Mr. Lee originally filed his suit in a court of incompetent jurisdiction. As such, Mr. Lee was required to serve RTA and TMSEL by December 22, 2012, to interrupt prescription. RTA was not served until July 25, 2013, over seven months past the prescriptive period. Therefore, Mr. Lee did not serve RTA within the prescriptive period to interrupt prescription, and his claims are prescribed. See Lloyd ex rel. Legaux v. Williams ex rel. Williams, 07-0004 (La.App. 4 Cir. 5/23/07), 959 So.2d 569, 571. Thus, we affirm the judgment of the trial court.

DECREE

For the above-mentioned reasons, we find that the trial court did not err, as Mr. Lee’s prescriptive period lapsed prior to the completion of service upon RTA. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED

      . This Court notes that the trial court further found that "his exceptions of prescription and no cause/right of action are once again DENIED,” after granting Mr. Lee's rehearing. However, the exceptions were filed by RTA and TMSEL, not Mr. Lee.