author: GREMILLION, Judge.

text:
    Melvin GUIDRY v. LOUISIANA SCRAP METAL RECYCLING
    WCA 16-864
    Court of Appeal of Louisiana, Third Circuit.
    December 21, 2016

      Michael Benny Miller, Jacqueline B. Ma-necke, Miller & Associates, Post Office Drawer 1630, Crowley, LA 70527-1630, (337) 785-9500, COUNSEL FOR PLAINTIFF/APPELLEE: Melvin Guidry
    Dennis Ray Stevens, Gibbens & Stevens, 222 W. St. Peter, New Iberia, LA 70560, (337) 367-8451, COUNSEL FOR DEFENDANTS/APPELLANTS: Hartford Insurance Company, Louisiana Scrap Metal Recycling
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

| í This court, on its own motion, issued á rule for the appellants, Louisiana Scrap Metal Recycling (Louisiana Scrap) and Hartford Insurance Company (Hartford), to show cause, by brief only, why this appeal should not be dismissed as having been taken from a judgment lacking proper decretal language. Louisiana Scrap and Hartford filed a response to this court’s rule. For the reasons expressed below, we convert this appeal into an application for supervisory writ and deny the writ on the merits.

The claimant, Melvin Guidry, initiated this workers’ compensation action by filing a Form 1008 with the Office of Workers’ Compensation (OWC) on April 17, 2013, against Louisiana Scrap averring that he had sustained an injury in the course and scope of his employment with Louisiana Scrap. Louisiana Scrap filed its Answer to the claim on May 17, 2013. In this pleading, Louisiana Scrap averred, “It is affirmatively alleged that Melvin Guidry has been terminated from employment for cause.”

Mr. Guidry filed his Amended Disputed Claim for Compensation on August 2, 2013, adding Louisiana Scrap’s workers’ compensation insurer, Hartford, as a party defendant. Louisiana Scrap filed an Amended Answer on September 26, 2013, and Louisiana Scrap and Hartford filed an Answer to Amended Disputed Claim for Compensation on October 30, 2013.

After retaining new counsel, Mr. Guidry again filed an Amended Disputed Claim for Compensation on October 17, 2014. On November 12, 2014, Louisiana Scrap and Hartford filed their Exception and Answer to Amended Disputed Claim for Compensation, in which they raised an issue regarding prematurity as to this amended claim. Mr. Guidry filed another Amended Disputed Claim for | ^Compensation on July 6, 2015. Louisiana Scrap and Harford filed their Answer to Amended Disputed Claim for Compensation on July 27, 2015, in which they averred that Mr. Guidry committed fraud by continuing to seek compensation benefits “when he has. been guilty of the very conduct proscribed by the Louisiana Workers’ Compensation Act.”

On August 31, 2016, Mr. Guidry filed his Exception of Lack of Subject Matter Jurisdiction. In this exception, Mr. Guidry states that “Defendant alleged MELVIN GUIDRY was terminated for cause and is not entitled to workers’ compensation benefits.” Further, Mr.' Guidry asserts, “Whether or not MELVIN GUIDRY was terminated for cause cannot be adjudicated in workers’ compensation court as this court lacks subject matter jurisdiction over termination.” Thus, Mr. Guidry concludes, “This court does not have subject matter jurisdiction to decide whether or not MELVIN GUIDRY was terminated for cause.”

The subject matter jurisdiction issue and another matter came for hearing before the OWC court on September 10, 2015. The OWC judge granted the exception of lack of subject matter jurisdiction at the conclusion of the hearing. A written judgment was signed by the OWC judge on December 16, 2015. Louisiana Scrap and Hartford filed a writ application with this court challenging the OWC L .judge’s granting of the exception. However, this court, with one judge concurring, ruled as follows:

WRIT DENIED. REMANDED WITH INSTRUCTIONS. We deny the instant writ application finding that the relators, Louisiana Scrap Metal Recycling (LSMR) and Hartford Insurance Company (Hartford), have an adequate remedy through an ordinary appeal. As La. Code Civ.P. art. 1915 is not applicable in workers’ compensation cases, there is no need for a designation of finality. Poche v. Huey P. Long Med. Ctr., 08-311 (La. App. 3 Cir. 5/21/08), 983 So.2d 986. However, the matter is remanded to the Office of Workers’ Compensation, Division 04, with instructions to issue a judgment containing proper decretal language so that LSMR and Hartford can pursue a proper appeal upon the signing of a final judgment. See Carter v. Williamson Eye Center, 01-2016 (La.App. 1 Cir. 11/27/02), 837 So.2d 43.

Guidry v. Louisiana Scrap Metal Recycling, 16-156 (La.App. 3 Cir. 4/20/16) (unpublished ruling).

Following this court’s ruling on the application for supervisory writ, the OWC judge signed an Amended Judgment. In this amended ruling, the OWC court states, “IT IS HEREBY ORDERED ADJUDGED AND DECREED that there be judgment rendered herein in favor of plaintiff, MELVIN GUIDRY and against defendants, LOUISIANA SCRAP METAL RECYCLING AND HARTFORD INSURANCE COMPANY, granting MELVIN GUIDRY’S Exception of Lack of Subject Matter Jurisdiction.” Louisiana Scrap and Hartford filed a motion and order of appeal from this ruling. Upon the lodging of the record in this appeal, this court issued the subject rule to show cause to Louisiana Scrap and Hartford to show cause why the appeal should not be dismissed for having been taken from a judgment lacking proper decretal language.

In response to this court’s rule to show cause, Louisiana Scrap and Hartford state that the amended judgment contains the proper decretal language. We disagree.

In Thomas v. Lafayette Parish School System, 13-91 (La.App. 3 Cir. 3/6/13), 128 So.3d 1055, the claimant in a workers’ compensation action appealed a judgment which granted partial summary judgment in favor of the employer. In dismissing the appeal, this court stated:

The judgment at issue reads, in pertinent part, as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that the Lafayette Parish School Board’s Motion for Partial Summary Judgment is granted.
In her response to this court’s rule to show cause order, Plaintiff argues that the above language complies with the requirements for a final judgment. However, we note that this court has stated that “[a] valid judgment must be precise, definite, and certain. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.” State v. White, 05-718 (La.App. 3 Cir. 2/1/06), 921 So.2d 1144, 1146. Moreover, a judgment cannot require reference to extrinsic documents or pleadings in order to discern the court’s ruling. Vanderbrook v. Coachmen Industries, Inc., 2001-809 (La.App. 1 Cir. 5/10/02), 818 So.2d 906.
In the instant case, it is unclear from the face of the judgment whether the granting of Defendant’s motion for partial summary judgment results in the dismissal of all or only some of Plaintiff’s claims against Defendant. This information, which is necessary for a determination of whether an appealable judgment has been rendered in this case, cannot be ascertained without referring to other pleadings in the record. Therefore, we find that the judgment at issue in the instant appeal is ambiguous and lacks appropriate decretal language. See Johnson v. Mount Pilgrim Baptist Church, 2005-337 (La.App. 1 Cir. 3/24/06), 934 So.2d 66. Accordingly, we dismiss this appeal and remand this case to the workers’ compensation court for further proceedings in accordance with this ruling.

128 So.3d at 1056-57.

This court’s reasoning in Thomas is directly applicable to the instant case in that we find that the written ruling is ambiguous and lacks proper decretal language. The judgment appealed states that the exception of lack of subject matter jurisdiction is being granted, but the only way to know the effect of this ruling is Rby referring to additional extrinsic documents. By referring to the exception itself, it appears to this court that Mr. Guidry sought the dismissal of only an issue in this matter, specifically the issue of whether or not Mr. Guidry had been dismissed by Louisiana Scrap for cause. A reading of the OWC judge’s oral ruling from the bench at the hearing on this matter supports a finding that deciding this sole issue was the OWC judge’s intent in the granting of this exception.

In similar cases, this court has remanded the case with orders that the judgment be revised to include proper de-cretal language so that an appeal can be perfected from the new ruling. However, La.Code Civ.P. art. 2164 provides, in pertinent part, “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” Having the entire appellate record in this case before this court, we now have a greater understanding of the procedural posture of this matter than was apparent on the limited record provided to us in the prior writ application.

The supreme court has held that the workers’ compensation scheme is designed “to provide a speedy resolution to workers’ compensation claims and a swift recourse for injured workers.” Rhodes v. Lewis, 01-1989, p. 8 (La. 5/14/02), 817 So.2d 64, 69. In Evergreen Presbyterian Ministries v. Wallace, 05-1343 (La.App. 3 Cir. 4/5/06), 926 So.2d 759, the OWC court had rendered judgment finding the claimant was entitled to supplemental earnings benefits at a zero earning capacity, but also had ruled that the claimant was not temporarily and totally disabled. Both parties appealed assigning various assignments of error. However, this court did not render a decision on the merits of the OWC court’s ruling. Instead, after noting that the OWC court had specifically deferred a ruling | fion the issue of attorney fees and penalties, this court dismissed the appeals as having been taken from a non-appealable judgment.

In making the decision to dismiss the appeals, this court observed:

One of the issues raised by Mrs. Wallace is the fact that the WCJ (workers’ compensation judge) severed the issue of penalties and attorney fees regarding payment of Dr. Lopez’s bill to be decided at a later time. Mrs. Wallace asks that we consider the issue and rule on it at this time.
In Rhodes v. Lewis, 01-1989 (La. 5/14/02), 817 So.2d 64, the supreme court affirmed a ruling by this court that an appeal in a workers’ compensation matter was premature and that appeals from partial final judgments pursuant to La.Code Civ.P. art. 1915 were not applicable in workers’ compensation cases. In making this decision the supreme court looked to La.R.S. 23:1310.5 which provides, in pertinent part:
A. (1) Insofar as may be possible, all the evidence pertaining to each case, except as to noncontested matters, shall be heard by the workers’ compensation judge initially assigned to the case. Upon the completion of such hearing or hearings, the workers’ compensation judge shall make such order, decision, or award as is proper, just, and equitable in the matter.
(2) Either party feeling aggrieved by such order, decision, or award shall, after receipt by certified mail of the order, decision, or award, have the right to take an appeal to the circuit court of appeal for the judicial district elected by the claimant upon the filing of the petition. The motion and order for appeal shall be filed with the district office assigned to handle the claim, which shall be responsible for preparation of the record for the appellate court.
The supreme court relied on its previous decision in Smith v. UNR Home Products, 614 So.2d 54 (La.1993), which relied upon La.R.S. 23:1310.5 in finding an appeal premature. The Smith court stated that the, statute:
[Cjontemplates an appeal from a final decision by the hearing officer upon completion of the required evidentiary hearing or hearings. Piecemeal appeals go counter to the new worker’s compensation procedures which are designed to allow the hearing officer to “decide the merits of the controversy as equitably, summarily and simply as may be.” LSA-R.S. 23:1317(A). The new procedures are designed to speed up the |7adj udicative process, not to prolong and complicate it by partial judgments and multiple appeals.

Id. at 54-5.

The law is clear, and we are bound to follow the supreme court’s dictates, that a piecemeal appeal is not permissible in a workers’ compensation case. The judgment of the Office of Workers’ Compensation clearly establishes that issue of penalties and attorney fees is yet to be decided by it. As the second circuit noted in Gajeske v. Integrated Electrical Services, Inc., 37,777 (La.App. 2 Cir. 10/29/03), 859 So.2d 896, in footnote four (citing Rhodes, 817 So.2d 64), a piecemeal appeal is not permissible when there are still issues involving penalties and attorney fees yet to determined. Until all issues have been decided in this case, this appeal is premature.

Accordingly, the appeal is dismissed.

Evergreen Presbyterian Ministries, 926 So.2d at 763.

A fortiori, we find in the instant case that no appeal can be countenanced from the judgment granting the exception of lack of subject matter jurisdiction even if the judgment is reformed to provide proper decretal language because the ruling will not result in a complete adjudication of this workers’ compensation action. Clear from this record is the fact that Mr. Gui-dry’s claim for compensation benefits is ongoing. No party to this action contends that the OWC court lacks subject matter jurisdiction over Mr. Guidry’s claim for compensation benefits. Therefore, the granting of the exception of lack of subject matter jurisdiction could not result in the dismissal of the entirety of this action. If this court were to remand this case for the ruling at issue to be amended to provide proper decretal language and another appeal is taken, we find that this would result in further unnecessary delay of this workers’ compensation claim.

We find that the ruling granting the exception of lack of subject matter jurisdiction dismissing the defendants’ claim that Mr. Guidry was dismissed for cause is a partial judgment which, pursuant to the above-discussed jurisprudence] ⅝ is incapable of being designated as final and immediately appealable because it arises within the context of a workers’ compensation action. Thus, in the interest of judicial economy and fairness to the parties, this court converts the instant appeal into an application for supervisory writ. The parties have filed their respective briefs on this appeal; therefore, additional briefing is not necessary prior to reviewing the merits of the issue presented.

In Miller v. Christus St. Patrick Hosp., 12-370 (La.App. 3 Cir. 10/24/12), 100 So.3d 404, writ denied, 12-2467 (La. 1/11/13), 107 So.3d 619, the employer argued that the OWC court had erred in failing to consider whether the employee had been terminated for cause in deciding whether the employee was entitled to workers’ compensation benefits. This court stated:

As to [the employer’s] contention that the WCJ erred in failing to consider whether [the employee] was terminated for cause, we also find [the employer] to be misguided in its understanding of what was legally before the WCJ. Louisiana Constitution Article 5, § 16(A)(1) vests district courts “original jurisdiction of all civil ... matters.” “[T]he workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter.” La.R.S. 23:1310.3(F). The question of whether [the employee’s] termination was for cause is a legal determination to be decided by a district court, not the administrative agency determining workers’ compensation matters. See La.Const. art. 5, § 16(A)(1), Therefore, the WCJ in this matter was correct that “whether it’s a legal termination or not isn’t a question for this forum.”

100 So.3d at 409.

As pointed out in the opposition’s brief, the cases on which Louisiana Scrap and Hartford rely are inapposite as they involved instances where the parties entered into stipulations. -In the instant ease, the parties have not entered into any such stipulation regarding .the issue of termination for cause or which tribunal can decide that issue. Accordingly, we find no error in the OWC court’s ruling |sgranting the exception of lack of subject matter jurisdiction as to the issue of whether Mr. Guidry was terminated for cause.

APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT. WRIT DENIED.

      . This court notes that the Exception of Lack of Subject Matter Jurisdiction and the memorandum in support of this exception do not appear in the record where it should. Instead, the only copy of the exception and supporting brief which.-.is included in the record is the copy that was attached as an exhibit to the writ application filed by the defendants in this court. Thus, the OWC court has included a copy of the courtesy copy of the defendants’ writ application to this court, with its exhibits, in the record from the OWC court. Were this court going to maintain this appeal, it would be necessary for this court to order the OWC court to file a supplemental record containing this exception and the memorandum in support. Also, the appellate record includes the defendants’ Memorandum in Opposition to Motion to Exclude. However, we note additionally that no Motion to Exclude appears of record.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Mary O’NEAL, Et Al. v. Ronnie NEWCOMB
    16-564
    Court of Appeal of Louisiana, Third Circuit.
    December 21, 2016

      Charles David Elliott, Charles Elliott & Associates, LLC, 720 Murray Street, Alexandria, LA 71301, Telephone: (318) 704-6511, COUNSEL FOR: Defendant/Appel-lee — Ronnie Newcomb
    Brandy McClure, P. O. Box 665, Jones-ville, LA 71343, Telephone: (318) 339-7337, COUNSEL FOR: Plaintiffs/Appellants — Mary O’Neal, Donald L. O’Neal, Tommy Joe McClure, and Julia T. McClure
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John E. Coneiy, Judges.
   THIBODEAUX, Chief Judge.

Lin this boundaiy dispute, the plaintiffs, siblings Mary and Donald O’Neal, and husband and wife Tommy and Julia McClure, appeal judgments in favor of the defendant, Ronnie Newcomb. Finding that the judgment of the trial court was contrary to the law and evidence at trial, we reverse the judgment in favor of the defendant and order that a new trial be granted to the plaintiffs.

I.
ISSUES
We must decide:
(1) whether the trial court erred or was clearly wrong in finding that the plaintiffs failed to prove possession of the disputed acreage by acquisitive prescription;
(2) whether the trial court manifestly erred in finding that the boundary lines in the defendant’s title were correct; and
(3) whether the trial court manifestly erred in denying the plaintiffs’ motion for a new trial.

II.

FACTS AND PROCEDURAL HISTORY

Siblings Mary and Donald O’Neal, as the only children and heirs of Robert E. Lee O’Neal (sometimes referred to as “Robert”), inherited two parcels of land, totaling approximately 55.00 acres, in Rapides Parish, which Robert acquired from Joseph Adam O’Neal (sometimes referred to as “Joseph”) in 1936. Donald was seventy-three years old at the time of trial and had lived on the property since birth. Mary lived on the property most of her life as well. In 1960, Robert fenced a portion of his property as a means of marking the boundary between his land and | athe 20.73 neighboring acres which Joseph sold to Leonard O’Neal in 1937. In 2012, Mary and Donald donated the 55.00 acres to Tommy and Julia McClure (sometimes referred to as the “McClures”), but Mary and Donald reserved a lifetime usufruct over the property for themselves. The 20.73 neighboring acres from Leonard’s side of the O’Neal family came into ownership by Dusty and Kristin Gardner in 2012, and then by Dusty Gardner alone, pursuant to a property settlement in 2014. Gardner made it known that he was claiming a small portion of the fenced property as his own.

In April 2014, Mary and Donald O’N.eal, and Tommy and Julia McClure, jointly filed a petition to fix the boundary along the fence-line, asserting that they and their ancestors in title had been in quiet, uninterrupted possession of the property to the fence-line for over thirty years.

Four months before trial, in May 2015, Gardner sold the 20.73 acres to Ronnie Newcomb, and Newcomb was substituted as the defendant in the suit. Following trial, judgment was rendered in December 2015 in favor of Newcomb, stating that Newcomb was the record title owner of the land and legal boundaries in his title. The judgment effectively set the boundaries according to Newcomb’s title, the validity of which was strenuously disputed at trial. The plaintiffs’ motion for a new trial based upon La.Code Civ.P. art. 1972(1), asserting that the judgment was contrary to the law and to the evidence at trial, was denied.

The plaintiffs’ motion for appeal cited the December 30, 2015 judgment and the March 28, 2016 judgment and sought to appeal the final judgment of the trial court. The order of appeal listed the. December 2015 judgment, but the notice of appeal sent out by the court granted an appeal from the March 2016 judgment. It is clear that the appeal was requested and granted as to | aboth the original judgment and the judgment denying a new trial, and we will review both.

III.

STANDARDS OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in .the absence of manifest error or .unless it is clearly wrong. Stobart v. State through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Whether a party has possessed property for purposes of thirty-year acquisitive prescription is a factual determination subject to the clearly wrong standard of review. Phillips v. Fisher, 93-928 (La.App. 3rd Cir. 3/2/94), 634 So.2d 1305, writ denied, 94-813 (La. 5/6/94), 637 So.2d 1056. A boundary location is a question of fact subject to a manifest error standard of review. Bowman v. Blankenship, 34,558 (La.App. 2 Cir. 4/4/01), 785 So.2d 134, writ denied, 01-1354 (La. 6/22/01), 794 So.2d 794. Errors of law are reviewed de novo. Land v. Vidrine, 10-1342 (La. 3/15/11), 62 So.3d 36.

IV.

LAW AND DISCUSSION

The plaintiffs contend that the trial court manifestly erred in its finding that Ronnie Newcomb is the owner of the disputed acreage and that legal boundaries are set by his title because his title contains errors. We agree with the plaintiffs. The record reveals that the plaintiffs proved uninterrupted possession of the 55.00 acres owned by their ancestors in title since 1936, as well as a small portion inside a fence they erected in 1960. We find that the defendant’s 2015 title, while stating that it is the same 20.73 acres surveyed in 1908 and acquired by LNewcomb’s ancestor in title, Leonard O’Neal, in 1937, does not comport with the description in the 1908 survey or in the description in Leonard’s 1937 title. We also find that, because the trial court’s judgment is contrary to the law and evidence, the plaintiffs are entitled to a new trial.

More specifically, there were two lines of succession of two contiguous pieces of property owned by two brothers in 1908. They requested and obtained a survey plat of their properties in 1908 which shows that David O’Neal owned 20.73 acres, and Joseph Adam O’Neal owned approximately 55.00 acres that wrapped around David’s land on two sides. The separating boundary on those two sides was a bayou called the Lamentine or “Lemontine Branch.” Both pieces of property stopped, side by side, so to speak, at the “Public Road” marked on the 1908 plat by dotted lines. Thus, the Public Road was the boundary on one end for both pieces of property. As will be discussed later in this opinion, Ronnie Newcomb’s title was stringently disputed at trial because it changes the description of the boundary from the “Public Road” to a state highway, as testified to by surveyor Jared Couvillion. Mr. Couvillion testified unequivocally and repeatedly that the Public Road shown as the northern boundary of the properties, represented by a dotted line on the 1908 survey plat, was a buggy axle road, and was not the same as Highway 57 or Highway 28:

[PLAINTIFFS’ COUNSEL]: Okay. You have discussed the public road that is in that nineteen oh-eight survey, correct?
A. Yes.
Q. And you’ve also mentioned Highway 57 in a property description, correct?
A. Yes.
|SQ. Okay. Are those the same roads?
A. No.
Q. Okay. What’s the difference?
A. Highway 57 would be, in my opinion, where 28 is today. And that the old public road was really more or less a buggy axle road.
Q. So it’s your testimony — did Highway 57 move?
A. No.
Q. All right. So Highway 57 and Highway 28 are the same highway?
A. Yes.
Q. But the public road that’s made reference to in the nineteen oh-eight deed is different? That’s the public road, that’s not a state highway?
A. Yes.

The 1908 survey plat in the record shows that both brothers’ properties ran lengthwise, side by side, from (and perpendicular to) the Public Road located near the top of the Southwest Quarter (SW 1/4) of the Northeast Quarter (NE 1/4) of Section 10, down into the Northwest Quarter (NW 1/4) of the Southeast Quarter (SE 1/4) of Section 10 (in Township 5 North, Range 3 East). The plat also shows that a small piece of Joseph’s property extended into the Northeast Quarter (NE 1/4) of the Southwest Quarter (SW 1/4) of Section 10.

|fiAt some point in time before 1936, Joseph acquired David’s 20.73 acres. In 1936, Joseph sold the 20.73 acres to Leonard O’Neal; and in 1937 he sold his approximately 55.00 acres to Robert E. Lee O’Neal. Ronnie Newcomb purchased the 20.73 acres in 2015. The heirs of Robert E. Lee O’Neal, his only two children, the plaintiffs Mary and Donald O’Neal, kept the 55.00 acres, with Donald living on the property continuously since his birth in 1942; Mary has lived there most of her life as well. These facts are undisputed. In 2012, Donald and Mary executed an act of donation of the land in favor of the McClures but retained a lifetime usufruct over the property.

Donald testified that he helped his father build a fence in 1960 to mark the boundaries between the land, and that he continued to run cows, plant corn, and bush-hog the land to the fence, maintaining the fence-line continuously after his father died in 1975. Donald and Mary O’Neal did not open a succession after their father died, and thus did not have a title to the 55.00 acres in their own names. Donald and Mary testified that at no time were they interrupted or disturbed in their possession of the land to the fence-line from the day it was built in 1960.

Donald O’Neal testified as to the location of the fence and its purpose:

Q. And where is that fence?
A. Right in the front of the property that Mr. Newcomb claims he owns.
Q. Okay. And when was that fence built?
A. In nineteen sixty.
Q. And did you help build that fence?
|7A. I did.
Q. And what was the fence used for?
A. Keep livestock in. But it’s also the property line.
Q It’s the property line?
A. Mm-hmm (Yes).
Q. And you didn’t have to ask permission?
A. No.
Q. You openly ran your cows on that property?
A. Right.
Q. Okay. Did you ever farm it or anything?
A. There’s been corn planted on it.
Q. To the fence?
A. Yeah.
Q. So the fence — you testified that the fence goes on the north — tell me where the fence is again?
A. It’s on the north side of Highway— the old wagon road.

Donald O’Neal testified that he had lived on the property all his life and received and paid tax bills on it without opening a succession after his father died in 1975. Mary O’Neal testified that she had lived on the property for seventy-five years, confirmed that they asserted ownership of the property to the fence-line by running cattle and horses, and that they paid the taxes on the property.

Tommy McClure testified as naked owner of the 55.00 acres of property donated to him and his wife by Mary and Donald O’Neal in 2012.

Q. And on this property, is there a fence?
|SA. Yeah.
Q. And where is the fence?
A. Around the boundaries of it. It goes down 28 and goes over to the Sanson property, turns south six and a half chains. Then goes back east across Lem-ontine Branch, then goes south. Then goes back west, goes south again, back east and comes back up north to 28.
Q. And since you’ve been a naked owner of the property, how have you asserted ownership?
A. I have run cattle on the place and kept the fence up.
Q. And you ran the cattle to the fence?
A. Yeah to the fence. Correct.
Q. Okay. And has anybody interrupted your possession of the property?
A. Not until Ronnie called one evening about — he claimed he was going to buy the place and he was claiming across the Lemontine Branch as his. And I told him that the fence had been there for probably a hundred years. And that, you know, it was Donald and Mary’s and then they give it to us. It wasn’t — it’s never been you know, nothing — nobody’s ever tried possessing it till Ronnie. Well, Dusty Gardner wrote the letter first?

Mr. McClure then testified that the fence was visible and easily seen. He stated that he still maintained the fence built in 1960, and that he pulled a “little hot fence” in front of it to keep the cattle in.

The 1937 deed from Joseph A. O’Neal to Robert E. Lee O’Neal describes the two tracts making up the 55.00 acres as follows:

TRACT ONE:

A certain piece or lot of ground, lying and being situated in the Parish of Rap-ides, Louisiana, and being all of the Northwest Quarter of the Southeast Quarter of Section Ten (10) Township 5 North, Range 3 East, Louisiana |9Mer. Lying South and West of the Lemontine Branch, and a strip about two and three tenths chains wide on the Eastern portion of the Northeast Quarter of the Southwest Quarter of Section 10, Township 5 North, Range 3 East, and lying South all together and bounded North and East by Lemontine branch and South by William O’Neal, and West by vendor Ishmael[] Tarver, being twenty acres, more or less.

TRACT TWO:

A certain piece or parcel of land, lying and being situated in the Parish of Rap-ides, Louisiana. And being the Southwest Quarter of the Northeast Quarter and part of the Northwest Quarter of the Southeast Quarter of Section Ten (10), Township 5 North, Range 3 East, and being part of the land purchased by this vendor from L.L & E. O Red, as per deed of record in the Conveyance Book L, Page 491, and being a portion of said purchased which lies East of the North and South prong of the Lemon-tine branch and South of Public Road. Containing thirty-five (35) acres, more or less.

The actual area in dispute appears to be less than three acres and located in Tract Two above. The 2012 act of donation contains the same description as the 1937 deed above. Based upon the 1908 survey plat, the 1937 deed from Joseph O’Neal to Robert E. Lee O’Neal, and the 2012 donation from Mary and Donald O’Neal to Tommy and Julie McClure, the plaintiffs and their ancestors in title have occupied and have had corporeal possession of the same property since 1908. The plaintiffs, and their ancestor Robert E. Lee O’Neal, thought the fence they built in 1960 marked the real boundaries of the titled property. Thus, Robert E. Lee O’Neal possessed as owner, the property to the fence-line from 1960 until his death in 1975. His children and only heirs, Mary and Donald O’Neal, possessed as owners the property to the fence-line from 1975 until 2012, when they retained usufruct but donated the property to the McClures.

|1nAs the applicable law below demonstrates, Mary and Donald O’Neal are universal successors of Robert E. Lee O’Neal, and they acquired ownership of the property at the moment of Robert’s death in 1975. Thus, their possession tacked onto Robert’s possession, and they too have been in possession since 1960 of the property to the fence-line, which amounted to fifty-five years of possession at the time of trial. Even if the 1975 date of death is used, the plaintiffs had possessed the property for forty years at the time of trial. Thus, they have proved acquisitive prescription of thirty .years under the law.

Applicable Law

The applicable law states: “The boundary may be fixed upon the demand of an owner or of one who possesses as owner. It may also be fixed upon the demand of a usufructuary but it is not binding upon the naked owner unless he has been made a party to the proceeding.” La.Civ.Code art. 786. “Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.” La.Civ.Code art. 3486. “When both parties rely on titles only, the boundary shall be fixed according to titles. When the parties trace their titles to a common author preference shall be given to the more ancient title.” La.Civ.Code art. 793. “For purposes of acquisitive prescription without title, possession extends only to that which has been actually .possessed.” La.Civ.Code art. 3487. “When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty .years without interruption, within visible bounds, more land than their title |ncalled for, the boundary shall be fixed along these bounds.” La.Civ.Code art. 794. Article 794 Revision Comments provide in pertinent part:

(a) This , provision is based on Article 852 of the Louisiana Civil Code of 1870. It does not change the law. Articles 846, 847, and 851 of the Louisiana Civil Code of 1870 indicate that acquisitive prescription takes precedence over claims based on titles. The first sentence of Article 794 is an expedient for the avoidance of repetitious statements.
(b) According to Louisiana jurisprudence, prescription accrues under Article 852 of the Civil Code even if there is no juridical link among the possessors. Opdenwyer v. Brown, 155 La. 617, 99 So. 482 (1924); Ponder v. Fussell, 180 So.2d 413 (La.App.1st Cir. 1965).
(c) According to Article 3693 of the Louisiana Code of Civil Procedure, “Title prescriptions may be pled in boundary actions, and boundary prescriptions in title suits.” Ledoux v. Waterbury, 292 So.2d 485 (La.1974).

Specifically, La.Civ.Code art. 3693, addressing evidence and judgment, states: “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.”

“The court shall fix the boundary according to the ownership of the parties; if neither party proves ownership, the boundary shall be fixed according to limits established by possession.” La.Civ.Code art. 792. “To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing.” La.Civ. Code art. 3424. “Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing.” La.Civ. Code art. 3425. “One is presumed to intend to possess as owner unless he began to possess in the name of and for another.” La.Civ.Code art. 3427. “Once acquired, possession is retained |12by the intent to possess as owner even if the possessor ceases to possess corporeally. This is civil possession.” La.Civ.Code art. 3431. “The intent to retain possession is presumed unless there is clear proof of a contrary intention.” La.Civ.Code art. 3432. “Possession is lost when the possessor manifests his intention to abandon it or when he is evicted by another by force or usurpation.” La.Civ.Code art. 3433.

“Immediately at the death of the decedent, universal successors acquire ownership of the estate and particular successors acquire ownership of the things- bequeathed to them.” La.Civ.Code art. 935. “Prior to the qualification of a succession representative only a universal successor may represent the decedent with respect to the heritable rights and obligations of the decedent.” Id. The Revision Comments to Article 935 provide in pertinent part:

(d) As under previous law, the decedent’s possession is transmitted to the universal successors with all of its defects as well as its advantages. La. Civil Code Article 943 (1870). They may institute all actions that the decedent could have brought unless the estate is under administration, in which case the succession representative is the proper party plaintiff or defendant and the successors need not be joined. La. Code Civil Proc. Articles 685, 734.
(h) “Universal Successors” is a term of art defined in Article 3506(28) to include heirs by intestacy and general and universal legatees.

“The possession of the decedent is transferred to his successors, whether testate or intestate, and if testate, whether particular, general, or universal legatees.” La. Civ. Code art. 936. “A universal successor continues the possession of the decedent with all its advantages and defects, and with no alteration in the nature of the possession.” Id. Article 936’s Revision Comment (a) provides: |ia “The transfer of possession that occurs under this Article is consistent with the provisions of Civil Code Article 3441. See Civil Code Article 3441 and the Comments thereunder; see also Civil Code Article 3442. The possession of the successor has the same attributes as the possession of the deceased.”

“Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in a thing of the estate as well as his interest in the estate as a whole.” La.Civ.Code art. 938(A). Article 938’s Revision Comment, (a) provides, “This Article recognizes the. ownership of estate property enjoyed by a successor prior to a formal judgment of possession, and affords a basis for his binding acts with respect to his own interest.”,

“Possession is transferable by universal title or by particular title.” La.Civ.Code art. 3441. Article 3441’s Revision Comment (b) provides:

Possession is not interrupted by the death of the possessor. The possession of the deceased is continued by his universal successor, such as an heir, universal legatee, or legatee under universal title. A particular legatee is placed in possession by the universal successor of the deceased. The possession of the deceased is tacked to the possession of the universal successor, and the possession of the latter to that of the particular legatee. Thus, there is no interruption of possession when a possessor dies.

“The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession.” La.Civ.Code art. 3442. Article 3442’s Revision Comments provide, in pertinent part:

(b) In case of universal succession, the possession of the successor is tacked to the possession of the deceased!)]
| u(d) Tacking of possession presupposes a juridical link. This link may arise through universal succession or particular succession. Despite the nonexistence of a juridical link, tacking is permitted in boundary actions within the limits of Article 794 of the Civil Code, as amended by Acts 1977, No. 169.
(e) An author is a person from whom the possessor has derived his right. Thus, the word “author” has the same meaning as ancestor in title. The possessor may have acquired his right from the author by universal or by particular title, onerous or gratuitous. The possession of the heir may be tacked to that of the deceased, and the possession of the buyer to that of the seller.

Based upon the foregoing, even though Mary and Donald O’Neal did not open a succession after them father died, and since no succession representative was ever named, Mary and Donald as the heirs and universal successors, acquired ownership of the property upon Robert’s death. Since possession was never interrupted, their possession tacked to them father’s, and undisputed testimony revealed that their 55-year possession included the 55.00 titled acres plus the small portion of land that extended to the fence-line. However, due to erroneous findings at trial, Mary and Donald O’Neal, and Tommy and Julie McClure, were not allowed to elicit testimony sufficient to mark the boundaries created by the fence.

Erroneous Findings and Limitations Imposed by the Trial Court

The trial court made numerous findings during the trial that erroneously limited the plaintiffs’ attorney regarding the testimony that she could elicit from the witnesses. The trial court’s comments during trial and during the hearing on the motion for new trial indicate an erroneous application of the law in reaching both judgments in favor of the defendant.

| knowledge or Consent

The trial court indicated there was no evidence that the defendant or his ancestors in title knew that Robert O’Neal and his successors were claiming land to the fence-line. However, there is no requirement of knowledge or mutual consent in proving possession of thirty years. In discussing Article 784’s predecessor, La. Civ.Code art. 852, the Louisiana Supreme Court distinguished between the requirements of ten years acquisitive prescription and thirty years acquisitive prescription:

[O]ne who has maintained uninterrupted possession of property within existing visible bounds during thirty years may retain the quantity so possessed by him though it be beyond and more than called for by his title. This is the possession that is essential to bring this article into operation, irrespective of the good or bad faith on the part of the possessor. There is nothing in the provisions of LSA-C.C. Art. 852 which demands the element of mutual consent of the parties. Its provisions clearly provide that possession of surplus land beyond one’s title shall entitle him to retain the same once his possession has continued uninterrupted within visible bounds for a period of thirty years.

Sessum v. Hemperley, 233 La. 444, 96 So.2d 832, 843 (1957). Thus, while mutual consent was needed to prove acquisitive prescription of ten years, proving acquisitive prescription of thirty years does not require good faith or mutual consent. Id.

Moreover, even where a disputed strip of land is not described in an intervening deed, if the possessor never at any pertinent time relinquished his possession of the property, the plea of prescription must be sustained. Sabine Lumber Co. v. Garcia, 110 So.2d 878 (La.App. 2 Cir. 1959). In Garcia, the court found that enclosure of any of the adjoining property by a possessor’s fence “is of sufficient duration without interruption to sustain the plea of prescription,” the | ^property, even though described in the adversary’s title, which lies on the other side of that fence has been acquired by the possessor, and “must be so recognized by the court.” Id. at 881.

Limitations on Testimony

While the trial court attempted to allow relevant testimony, ultimately the court sustained objections that it should have overruled. For example, during the defendant’s cross-examination of Tommy McClure, counsel for the defendant asked questions regarding the 1908 survey plat but refused to show Mr. McClure the plat. Then defense counsel actually told Mr. McClure where Highway 28 was on the plat, though it is not on the plat, and when counsel for Mr. McClure rebutted on the issue, defense counsel argued that it was outside of cross and denied raising the issue of the location of Highway 28. When Mr. McClure’s counsel tried to have him draw the location of Highway 28 on the plat in relation to the actual boundary created by the Public Road, she was prevented from doing so, as the trial court finally agreed with defense counsel that the issue was beyond cross. This was error, as seen in the following colloquy (emphasis added).

BY [DEFENSE COUNSEL] MR. ELLIOT:

Q. Have you seen this old plat which has been marked at Exhibit P-1?
A. I can’t see it from there.
Q. All right.
A. Well, I can’t get it straight. Where’s 28?
Q. Well, it’s in this area here.

Thus, defense counsel tried to tell Mr. McClure where Highway 28 was on the plat, but in fact, the 1908 survey plat does not show Highway 28 at all. |17The area that defense counsel was pointing to is labeled “Public Road” on the plat. Defense counsel continued the cross.

MR. ELLIOTT: So on this map, it shows the David O’Neal property on the other side of the branch. You can call it creek.
A. Right.
Q. Twenty point seventy-three acres, right?
A. Yeah. Correct. Over there. Yeah.
Q. Okay. And the property we’re talking about here, it’s been described as being about two and a half to three acres. And this act of donation, I see a twenty acre tract, a thirty-five acre tract, and a forty acre tract.
A. If you’ll bring that map back up and I can show you how the lines run there.
Q. No, no. I’m not asking you that. I’m asking you about this act of donation that you—
THE COURT: Hold on, sir. If you let him look at the document, then he can either say it’s — if that’s what it’s in or not.
MR. ELLIOTT: Well, I’ll be glad to let him look at it. It wasn’t a trick question. I was just—
THE COURT: Well, no. I just want him to know what he’s testifying to if you want him to testify to something that’s in a document.
Q. But I don’t see a tract that’s two and a half to three acres.
A. All right. Well, if you bring the map, I’ll be glad to show you where.
|1SQ. Sir that — I’m not here to help you. You’re on the other side.
A. I’m trying to get to the truth. It’s right there—

On re-examination by Mr. McClure’s counsel, the following exchanges took place:

Q. Mr. Elliott had presented you a map.
A. Correct. Yeah.
Q. Do you want to show us where the property is in question? Can you draw that on there?
A. Okay. This is what’s in question right here.
MR. ELLIOTT: Are we looking at P-1?
[PLAINTIFFS’ COUNSEL] MS. MCCLURE: The nineteen oh-eight— yeah. P-1.
MR. MCCLURE: FBI-201. All right. This right here is what’s in question.
' MS. MCCLURE: And he had asked you about the public road. Where is 28.
A. Twenty-eight would be up here.
Q. Right. Okay
MR. ELLIOTT: Lack of foundation. He’s not qualified to testify to that.
MS. MCCLURE: He — I’m following up on his—
MR. MCCLURE: I know where 28 is. I drive it.
THE COURT: Hold on, Mr. McClure.
MS. MCCLURE: He had asked him ■about the public road. I’m—
THE COURT: Your objection, Mr. Elliott?
_J¿gMR. ELLIOTT: Your Honor, we went round and round with Mr. Couvil-lion the land appraiser and there was — I thought we concluded that the road is the road is the road. He never testified that Highway 28 was in a different place than the road that’s on that map. There’s no testimony to that. So now, this lay witness certainly is less qualified to come in and testify that the road that’s shown on that map is not the same as Highway 28.
THE COURT: I believe he can testify based upon what his perception is of the map in regards to what he thinks is out—
MR. ELLIOTT: Well, then we’re going to need to lay a foundation about his knowledge of the previous road, the current road, whether there was any expropriation. I mean, I don’t — there’s been no link that says — and we had the guy in here that could have done it — to say that road is not the ' same as Highway 28.
MR. ELLIOTT: So she’s going beyond what I covered in cross on her re-direct. THE COURT: Right.

In reality, defense counsel did not ask where Highway 28 was; rather, he told Mr. McClure where Highway 28 was. Defense counsel clearly asked whether Mr. McClure had seen the plat; he apparently held up the plat from a distance and when Mr. McClure could not find Highway 28, Mr. McClure asked where 28 was, and defense counsel then said, “Well, it’s in this area here.” Thus, defense counsel did more than ask the question; he answered the question, erroneously, knowing that Highway 28 was not shown or labeled on the plat. He then misrepresented to the court that he had not brought up the plat, or Highway 28, or the disputed acreage during his cross-examination of Mr. McClure. Defense counsel then mischarac-terized to the trial court the earlier testimony of Mr. Couvillion, telling the court that there had been no testimony from Mr. Couvillion ^saying that the Public Road and Highway 28 were not the same, where, in reality, Mr. Couvillion stated that repeatedly in his testimony, as fully shown above. The trial court accepted defense counsel’s erroneous re-capitulation of the testimony throughout the trial and precluded admissible testimony as a result.

In particular, Mr. Couvillion tried repeatedly to describe the fence in question and the location of the land inside the fence. But because his survey was not timely, and not admitted, he was also not allowed to testify in person, as to where the fence or the disputed property were located in relation to the 1908 plat that was admitted into evidence. He was repeatedly stopped each time he neared the pertinent testimony, though he had been named as an expert months before trial and had been accepted by the court at trial as an expert surveyor. The trial court repeatedly agreed to most of the ill-founded objections of the defense counsel.

Reasons for Judgment and Judgment

The trial court’s additional errors are revealed in its reasons for judgment. Therein the trial court stated (emphasis added):

While the witnesses testified that the fence was the boundary line and was always considered the boundary line since it was built, there was no testimony to the effect that the defendant and defendant’s ancestors in title knew that the plaintiffs or their ancestors were possessing a small portion of defendant’s land as owners and in a fashion that is adverse and hostile to the defendants’ record ownership.
There is no evidence in the record of the specific location of the fence or what it actually encompasses. The evidence at trial established that the fence was placed there to run cattle and was not placed as a boundary marker. Mr. New-comb is the record title owner of the land and the legal boundaries of his property are not in dispute.

12iAs shown above, the undisputed testimony of Mary and Donald O’Neal and Tommy McClure show that there was open, continuous, uninterrupted possession by the plaintiffs of the land to the fence-line. Donald O’Neal and Tommy McClure testified that the fence was the boundary, not just put there for cattle. Both witnesses testified as to the location of the fence, as did the surveyor, Jared Couvil-lion, though he was prevented from describing the location with sufficient detail. The above discussed law shows no requirement that the adverse owner had to give consent or even have knowledge that a portion of their land was being possessed by others as owners.

The trial court cited only Grantham v. Gaddis, 14-558 (La.App. 3 Cir. 12/10/14), 158 So.3d 51, writ denied, 15-387 (La. 5/22/15), 170 So.3d 984, in support of its finding. However, Grantham does not support the trial court’s finding or the defendant’s position. There, the plaintiff had moved to Texas in 1949, while the defendants had the longer use and occupancy of the property, the reverse of the facts in the present case. Here, there was no testimony by Mr. Newcomb, who had practically nothing to say at trial, regarding his use of the property or that of his ancestors in title. Further, in Grantham, the court stated that the defendant’s “abstracts of title to the subject properties have been placed in evidence and are not in dispute.” Id. at 54-55. In this case, the few documents admitted into evidence indicate that no title searches were done, and Mr. New-comb’s title is definitely in dispute in this case. The Grantham court cited the law we have already discussed. However, as shown above, the plaintiffs in this case did prove uninterrupted possession of the land to the fence-line since 1960. They were just not allowed to mark the fence-line on the survey plat.

| aaWhile the plaintiffs were not allowed to elicit testimony sufficient to mark the boundaries created by the fence, the trial court erred in setting the boundaries according to Newcomb’s title. In addition to its reasons for judgment, the trial court’s judgment also stated that “judgment is entered in favor of the defendant, Ronnie Newcomb, as Ronnie Newcomb is the record title owner of the land and legal boundaries in his title,” thereby setting the boundaries according to Newcomb’s 2015 title. However, Newcomb’s title does not comport with that of his ancestor in title, Leonard O’Neal.

Newcomb’s Title

The description of the land sold by Joseph A. O’Neal to Leonard O’Neal in 1936 reads (emphasis added):

12¡¡A certain piece, parcel or tract [of] land, being, lying and situated in the Pariah of Rapides, and State of Louisiana, and d[e]scribed as: That part of the S.W. 1/4 of the N.E. 1/4 of Sec. 10 T.5 N. R. 3 E. lying South of the Public Road and West of the North branch of Bayou Lemontine[.] Also that part of Sec. 10 T. 5 N. R. 3 E., lying West of the Branch of Bayou Lemontine, and North of the Bayou Lemontine, containing in all twenty (20-73) and seventy three tents [sic] acres more or less, being the same property acquired by vendor from Dave O’Neal as per deed recorded in Conveyance Book xx 110-127, at the Rapides Parish Court House Clerk of Court Office, Together with all building and improvements thereon. Also new description of the same property, being six and one half (61/2) chains South of Highway No. 57 being a part of S.W. 1/4 of the North East 1/4 in Sec. 10 T. 5 N. R. 3 E. Bounded on the East by North Lemon-tine Branch[,] and on the south by West prong of the Lemontine branch, and on the West by property of Peter Sanson [ ] as above stated[] being twenty acres (20-73) and seventy three tents [sic][.]

By contrast, the description of the same land in Ronnie Newcomb’s July 7, 2015 title reads (emphasis added):

A certain piece, parcel or tract of land, together with all improvements thereon and all rights, ways and privileges thereunto appertaining, being, lying and situated in Section 10, Township 5 North, Range 3 East, Rapides Parish, Louisiana, being part of the Northwest Quarter of the Southeast Quarter (NW 1/4 of the SE 1/4) and part of the Southwest Quarter of the Northeast Quarter (SW 1/4 of NE 1/4) of said Section 10, and being further described as fronting 6.5 chains on the south side of the public road formerly known as Highway No. 57 and now known as Highway 28 East bounded on the east by the North Branch of Bayou Lemontine, on the south by the west prong of the North Lemontine Branch, and on the west by property now or formerly belonging to Pete Sanson, said western boundary also being the north-south mid-section line of the aforesaid Section 10, containing 20.73 aeres[] being the same property acquired by Leonard L. O’Neal from Joseph A. O’Neal by acts recorded at Conveyance Book 209, Pages 357 and 483, records of Rapides Parish, Louisiana; and by Act of Donation recorded on November 5, 1980 under Original entry No. 728450; records of Rapides Parish Louisiana.
The above described property having a municipal address of 24 L. Alwell Road, Deville, Louisiana 71328.
Being the same property acquired by Dusty Adam Gardner in two acquisitions, (1) Cash Sale from Janet Alwell Arias and David Louis Alwell, recorded September 5, 2012 in Conveyance Book 1926, Page 729, records of Rapides Parish, Louisiana, and (2) from Kristin Lani Hinman Garder by Voluntary Community Property Partition, recorded June 23, 2014 in Conveyance Book 1984, Page 917, all records of Rapides Parish, Louisiana.

Not only does Newcomb’s title change the boundary line from the “Public Road” to state Highway 28, it changes the boundary from being 6.5 chains “south” of Highway 28, to a boundary “fronting 6.5 chains on the south side” of Highway 28. While Newcomb’s 2015 title professes to describe the same 20.73 acres that Joseph O’Neal sold to Leonard O’Neal in 1936, the newer title changes |24the description. As discussed above, Mr. Couvillion testified repeatedly that the Public Road represented by a dotted line on the 1908 survey plat was a buggy axle road, and was not the same as Highway 57 or Highway 28. He further stated:

THE COURT: Just so I’ll know when I get it, which one are you talking about?
[PLAINTIFFS’ COUNSEL]: This public road right here.
THE COURT: Kind of the dotted line there?
[PLAINTIFFS’ COUNSEL]: Yes. It’s the dotted line on the right side of the survey.
THE COURT: Okay. Go ahead.
[PLAINTIFFS’ COUNSEL]: And that’s important when distinguishing the lines for the property descriptions, correct?
A. Yes.
Q. And can you tell me what the importance is of that?
A. The importance is of that line is that when that surveyor had performed that survey in nineteen oh-eight, he was demarcating the north boundary of what was David O’Neal’s property being the 20.73 acre tract.
Q. Okay. So that was a boundary line on that 20.73 acre tract?
A. Yes
A. The description reads, also new description of same property being six and one-half chains south of Highway Number 57.
Q. Okay. So the property when Leonard O’Neal received the property, the property does not front on Highway 28, correct?
A. Correct.
Q. The property is 6.5 chains off of Highway 28?
|25A. Correct.

Throughout Mr. Couvillion’s testimony, defense counsel objected and interrupted the expert repeatedly when he testified regarding titles and boundary descriptions in the deeds, which were clearly in the purview of a surveyor, and clearly allowed by law in a boundary dispute. The law is clear: “When the parties trace their titles to a common author preference shall be given to the more ancient title.” La.Civ. Code art. 793. The trial court erred in relying on Newcomb’s title to set the boundaries.

Also in evidence is a title wherein, on June 11, 2004, Newcomb purchased a smaller, triangular-shaped tract of land for $3,000.00 from Mary and Donald O’Neal. It appears that the trial court may have believed that this triangular piece of land was part of the acreage in dispute. But that tract of land is in a completely different Quarter of Section 10 and does not adjoin the Quarters in any of the descriptions shown above. More specifically, the description of the property sold to New-comb in 2004 states as follows (emphasis added):

All of the Southwest Quarter of the Northwest Quarter of Section 10, Township 5 North, Range 3 East, that lies North of the right-of-way of Louisiana Highway 28 the property being conveyed herein being triangular in shape and being bounded on the West by O’Neal Road, on the North by property currently owned by Vendees and on the South by Louisiana Highway 28.

AH of the land above is in the Southwest Quarter of the “Northwest” Quarter of Section 10, while the acreage in dispute around the Public Road is in the Southwest Quarter of the “Northeast” Quarter of Section 10. The triangular-shaped acreage purchased by Newcomb in 2004 is separated — by forty acres — from the land where the fence is located. That is, traveling west from the Meridian marking the western border of the land in dispute, one would have to travel over |gRthe entire Southeast Quarter of the Northwest Quarter of Section 10 before getting to the Southwest Quarter of the Northwest Quarter. Thus, the land purchased by Newcomb in 2004 is separated from the land purchased by Newcomb in 2015 by a full quarter of a quarter, or forty acres. The land purchased in 2004 appears to have nothing to do with the small portion now in dispute.

Motion for New Trial

In their motion for a new trial, the plaintiffs asserted that a new trial should be granted because the judgment to set the boundaries according to Newcomb’s title was contrary to the law and the evidence pursuant to La.Code Civ.P. art. 1972(1). Article 1972 provides in pertinent part as follows:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.

While the plaintiffs clearly brought their motion for a new trial under Article 1972(1), based upon the judgment’s having been contrary to law and evidence, the trial court denied the motion under Article 1972(2), a failure to present new evidence that was unavailable at the time of trial. At the end of the hearing on the motion for a new trial, the trial court stated his findings as follows:

This is a motion for a new trial. Articles 1971 and 1972 of the Code of Civil Procedure, particularly Article 1972, Section A(l), where it talks about the contrary to law in evidence. I am denying the motion for new trial. I believe the action is a boundary action where it needs to be set. I don’t see any — where there would be any evidence that should not have been admitted already in the trial that comes to light. The law provides that the person to prove boundary action has that burden to prove, and I do not see where that burden was met. |27There’s no new evidence that I can see in regards to the matter .... So, I will deny the motion for a new trial at the plaintiffs cost.

Revision Comment (d) to Articles 1971, 1972, andl973, provides in pertinent part: “Although the trial judge has much discretion regarding applications for new trial, in a case of manifest abuse the appellate court will not hesitate to set the trial court’s ruling aside, or grant a new trial when timely applied for.”

We find that the trial court abused its discretion in denying the plaintiffs’ motion for new trial where, as discussed at length above, the judgment was contrary to the law and the evidence at trial. Accordingly, we remand this matter to the trial court with instructions to conduct a new trial consistent with the law and findings articulated in this opinion. More specifically, while we find that the plaintiffs proved thirty years acquisitive prescription, because of the erroneous limitations on their testimony and the testimony of Mr. Couvil-lion, there is not sufficient detail to delineate the boundary line proved by the possession. Thus, the trial court is ordered to admit any evidence necessary to fix the boundary proved by the plaintiffs’ possession to the fence-line, including Mr. Couvil-lion’s survey, and any new plat required to depict the newly established boundary.

Louisiana Civil Code Article 2089, entitled “Description required of immovable property affected by judgments or decrees,” states: “All judgments and decrees which affect title to immovable property shall describe with particularity the immovable property affected.” Likewise, La. Code Civ.P. art. 1919 states: “All final judgments which affect title to immovable property shall describe the immovable property affected with particularity.” La. Code Civ.P. art. 1919. Thus, the trial court’s final judgment shall contain a property description of the new 1 ..«boundary. Additionally, the title of Ronnie Newcomb shall be reformed to reflect the new boundaries consistent with this opinion.

V.

CONCLUSION

Based upon the foregoing, the trial court’s judgment in favor of Ronnie New-comb dated December 30, 2015, is reversed. Likewise, the trial court’s judgment of March 28, 2016, denying a new trial to the plaintiffs, Mary and Donald O’Neal, and Tommy and Julia McClure, is reversed, and a new trial is ordered.

Costs of this appeal are assessed to the defendant, Ronnie Newcomb.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      . A Township contains 36 square miles and is divided into 36 Sections; each Section contains one square mile, or 640 acres. Each Section is divided into quarters containing 160 acres each. Each Quarter is then subdivided into Quarters containing 40 acres each. The location of a piece of property within a forty-acre Quarter of a Quarter is sometimes expressed by separating the designations with a comma, Thus, Joseph A. O'Neal and David O'Neal both owned property in the Southwest Quarter of the Northeast Quarter (SW 1/4, NE 1/4) and the Northwest Quarter of the Southeast Quarter (NW 1/4, SE 1/4) of Section 10; and a small portion of Joseph's property extended into the Northeast Quarter of the Southwest Quarter (NE 1/4, SW 1/4) of Section 10.

      . One "chain” is a land measurement equal to 66 feet. Black's Law Dictionary, Sixth Edition, St. Paul, Minn. West Publishing Co. 1990. Thus, 6.5 chains is equal to 429 feet.


author: CRAIN, J.

text:
    Earl MALUS and Karen Holbert Malus v. ADAIR ASSET MANAGEMENT, LLC, Adair Holdings, LLC, Lorand, LLC, and Jack Strain, in His Capacity as Sheriff and Ex-Officio Tax Collector for the Parish of St. Tammany
    NO. 2016 CA 0610
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: December 22, 2016

      Richard A. Tonry II, Raymond Brinson, Brian L. Glorioso, Douglass E. Alongia, Slidell, Louisiana, Attorneys for Plaintiffs/Appellants, Earl Malus and Karen Holbert Malus
    Thomas M. Flanagan, Andy Dupre, Camille E. Gauthier, New Orleans, Louisiana, and Melissa T. Castille, Vy Van Ky, Baton Rouge, Louisiana, Attorneys for Defendants/Appellees, Adair Asset Management, LLC, Adair Holdings, LLC, and Lorand, LLC
    Charles M. Hughes, Jr., Rachael P. Ca-talanotto, Mandeville, Louisiana, Attorneys for Defendant/Appellee, Rodney J. Strain, Jr., Sheriff and Ex-Officio Tax Collector for the Parish Of St. Tammany
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

|2The plaintiffs appeal a partial judgment of the trial court sustaining exceptions of res judicata and prescription, and dismissing their claim to annul a tax sale. Finding the trial court erred in designating the partial judgment as final and ap-pealable, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

The plaintiffs, Earl Malus and Karen Holbert Malus, purchased Lot 12 in Belle Terre Acres Subdivision in St. Tammany Parish in 1996. In 2009, the Maluses failed to pay the ad valorem taxes on the property. The property proceeded to a tax sale where it was purchased by Adam Asset Management, LLC on June 23,2010. Over three years later, on January 10, 2014, Adair filed a petition to quiet the tax title, naming the Maluses as defendants. Although they were served, the Maluses failed to answer the suit, and, after the entry of a preliminary default, Adair obtained a judgment against them confirming the default judgment on April 9, 2015. The April 9, 2015 judgment declares Adair to be the owner of Lot 12 and “forever enjoin[s] and prohibits] Earl P. Malus .... [and] Karen Holbert Malus ... from claiming or setting up any right, title, or interest in and to said property.” The Mar luses did not appeal the April 9, 2015 judgment.

On June 26, 2015, the Maluses filed- a petition against Adair and the St. Tammany Parish Sheriff asserting multiple claims, including (1) a claim seeking to annul the 2010 tax sale based upon alleged lack of pre-sale notice, (2) a possessory action asserting that the recordation of the tax sale and subsequent conveyances constituted disturbances-in-law of the Malús-es’ possession of the property, and (3) |sa request for an injunction prohibiting Adair and the Sheriff from evicting the Maluses or taking any other action to disturb their possession of the property.

Adair agreed to a preliminary injunction providing that it would not attempt to evict the Maluses until further order of the court. Adair then filed exceptions of res judicata and prescription asserting that the nullity action was barred by the April 9, 2015 judgment or, alternatively, had prescribed. After a hearing, the trial court signed a judgment on October 7, 2015, sustaining the exceptions and providing that the “Petition to Annul Tax Sale [and] Quitclaim Deed be dismissed with prejudice and the requested relief be denied.” The judgment did not address the posses-sory action or the request for injunctive relief.

The Maluses filed a motion for new trial, and during the pendency of that motion, Adair filed a rule to show cause seeking an order evicting the Maluses from the property. In a judgment signed on December 16, 2015, the trial court denied the motion for new trial as to the nullity claim; however, the trial court clarified in the judgment that “no judgment has been rendered in this matter regarding Plaintiffs’ Possesso-ry Action which remains pending in this court.” The December 16, 2015 judgment also denied Adair’s rule to evict the Malus-es as premature. The trial court designated the judgment a partial final judgment under Louisiana Code of Civil Procedure article 1915 based upon an express determination that there is no just reason for delay. The trial court gave no explicit reasons for that determination.

The Maluses appeal the December 16, 2015 judgment, assigning several errors to the trial court’s sustaining of the exceptions of prescription and res judicata. The Maluses also assert the trial court erred in denying them leave of court to amend their petition in an order signed on December 10, 2015.

^DISCUSSION

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. State, Department of Transportation and Development v. Henderson, 09-2212 (La.App. 1 Cir. 5/7/10), 39 So.3d 739, 741; McGehee v. City/Parish of East Baton Rouge, 00-1058 (La.App. 1 Cir. 9/12/01), 809 So.2d 258, 260. Consequently, we must first determine whether this court has jurisdiction to review the December 16, 2015 judgment at this time.

This court’s appellate jurisdiction extends to “final judgments.” La. Code Civ. Pro. art. 2083; Van ex rel. White v. Davis, 00-0206 (La.App. 1 Cir. 2/16/01), 808 So.2d 478, 483. A judgment that determines the merits in whole or in part is a final judgment. See La. Code Civ. Pro. art. 1841. A judgment that sustains an exception as to one or more, but less than all, of the claims against a party is a partial judgment and can be immediately appealed only if it is properly designated as a final judgment. See La. Code Civ. Pro. arts. 1911B and 1915B; City of Baton Rouge v. American Home Assurance Company, 06-0522 (La.App. 1 Cir. 12/28/06), 951 So.2d 1113, 1116.

The December 16, 2015 judgment dismissed only the Maluses’ claim seeking to nullify the tax sale. Their remaining claims against Adair, including the possessory action and the request for injunctive relief, remain pending. The judgment thus constitutes a partial judgment, and this court’s appellate jurisdiction appears to depend upon the propriety of the trial court’s designation of the judgment as final and ap-pealable pursuant to Louisiana Code of Civil Procedure article 1915B(1).

However, before reviewing the propriety of the trial court’s determination, we must consider whether the requirements of Article 1915B have been | ^legislatively eliminated for judgments dismissing actions to annul a tax sale. In that regard, Louisiana Revised Statute 47:2291A provides:

A nullity action shall be an ordinary proceeding governed by the Louisiana Code of Civil Procedure. Upon conclusion of the action for nullity, the court shall either:
(1) Issue a preliminary order that the tax sale, an acquisition of full ownership by a political subdivision, or a sale or donation of adjudicated property, as applicable, will be declared a nullity.
(2) Render judgment dismissing the action with prejudice which shall be a final judgment for purposes of appeal.

While Subsection (2) of this statute states that a judgment dismissing a nullity action “shall be a final judgment for purposes of appeal,” we do not construe this language to dispense with the necessity of an Article 1915B designation when the judgment dismissing the nullity action is a partial judgment,

Our interpretation of the relevant statutory language is guided by well-established rules of statutory construction. Legislation is the solemn expression of the legislative will; thus, the interpretation of legislation is primarily the search for legislative intent. In re Succession of Boyter, 99-0761 (La. 1/7/00), 756 So.2d 1122, 1128. The starting point for interpretation of any statute is the language of the statute itself, as the text of the law is the best evidence of legislative intent. See La. R.S. 1:4 and 24:177B(1); Rando v. Anco Insulations, Inc., 08-1163 (La. 5/22/09), 16 So.3d 1065, 1075.

All laws pertaining to the same subject matter must be interpreted in pari materia, or in reference to each other. See La. Civ. Code art. 13; Pierce Foundations, Inc. v. Jaroy Construction, Inc., 15-0785 (La. 5/3/16), 190 So.3d 298, 303. The legislature is presumed to have acted with deliberation and to have enacted a statute in light of the preceding statutes involving the same subject matter. See La. R.S. 24:177C; Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-0582 (La. 11/29/06), 943 So.2d 1037, 1045. Where | Bit is possible, courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter. Holly & Smith Architects, Inc., 943 So.2d at 1045.

The first sentence of Subsection 47:2291A confirms that a nullity action is governed by the Louisiana Code of Civil Procedure. As previously recognized, the Code of Civil Procedure contains numerous provision governing appeals, including Article 2083, which permits an appeal of a “final judgment,” and Articles 1911 and 1915, which, subject to certain exceptions not applicable here, require that partial judgments be properly designated as final to be subject to an immediate appeal. All of these provisions were in effect when the legislature enacted Section 47:2291 in 2008. See 2008 La. Acts. No. 819, §§ 1 and 3 (effective January 1, 2009).

When a nullity action is filed as a single action, as opposed to cumulated with other actions, the declaration in Subsection 47:2291A(2) that a judgment dismissing the action is a final judgment is entirely consistent with the provisions of the Code of Civil Procedure that were already in effect when the statute was adopted. Under those circumstances, the judgment determines the merits of the only action pending between the parties and, therefore, is a final judgment subject to appeal. See La. Code Civ. Pro. arts. 1841 and 2083A. On the other hand, if the nullity action is cumulated with other actions, as permitted by Louisiana Code of Civil Procedure articles 461-65, and only the nullity action is dismissed, any legislative authorization of an immediate appeal of that partial judgment, without an Article 1915B designation, would be directly contrary to the preceding law.

We find no language in Subsection 47:2291A indicating any legislative intent to modify the provisions of the Code of Civil Procedure governing appeals. To the contrary, the subsection begins by expressly declaring that a nullity action “shall be ... governed by the Louisiana Code of Civil Procedure.” This mandate |7is not subject to any qualifying language — such as a phrase providing “except as otherwise provided herein” — indicating that the subsection adopts a procedure that is contrary to the Code of Civil Procedure. Absent such language, it is reasonable to conclude that the legislature, in passing a statute, did not intend to abrogate any prior law relating to the same subject matter. See Barrilleaux v. NPC, Inc., 98-0728 (La.App. 1 Cir. 4/1/99), 730 So.2d 1062, 1065, writ denied, 99-1002 (La. 5/28/99), 743 So.2d 672. Construing the applicable provisions in pari materia, we find that Subsection 47:2291A(2) does not authorize the immediate appeal of a partial judgment dismissing an action to annul a tax sale, unless that judgment has been properly designated as final under Article 1915B.

This court’s jurisdiction thus depends upon whether the judgment was properly designated as a final judgment pursuant to Article 1915B. See La. Code Civ. Pro. arts. 1911B, 1915B(1), and 2083. The trial court gave no explicit reasons for its determination that no just reason for delay existed, so we review that determination on a de novo basis. See R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05, 14), 894 So.2d 1113, 1122; State, Department of Transportation and Development v. Henderson, 09-2212 (La.App. 1 Cir. 5/7/10), 39 So.3d 739, 741.

Article 1915 attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties. R.J. Messinger, Inc., 894 So.2d at 1122. In conducting our review of the trial court’s designation, we consider the “overriding inquiry” of “whether there is no just reason for delay,” as well as the other nonexclusive criteria trial courts should use in making the determination of whether certification is appropriate, which include: (1) the relationship between the adjudicated and the unadjudicated claims, (2) the possibility that the need for review might or might not be mooted by future developments in the district court, |s(3) the possibility that the reviewing court might be obliged to consider the same issue a second time, and (4) miscellaneous facts such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. See R.J. Messinger, Inc., 894 So.2d at 1122-23; Henderson, 39 So.3d at 741-42.

Here, the relationship between the adjudicated and unadjudicated claims does not support the need for an immediate appeal of the partial judgment. The adjudication of the nullity claim, regardless of which party prevails on appeal, will not be not determinative of the possessory action. A trial will still be necessary to determine the merits of that claim, as well as the request for injunctive relief. After those claims have been adjudicated, either party will have the right to appeal any adverse judgment rendered in the proceeding. See La. Code Civ. Pro. arts. 2083A, 3612, and 3662B. We further note that if the Maluses prevail in the possesso-ry action, Adair will have to institute a petitory action within a designated time to further pursue any ownership interest in the property. See La. Code Civ. Pro. art. 3662A(2). As such, it appears that any ruling on appeal at this point will not shorten the time of trial, cause undue delay, or needlessly increase the cost of litigation. See Henderson, 39 So.3d at 742.

We find the trial court erred in designating the December 16, 2015 judgment as a final judgment pursuant to Article 1915B(1). See City of Baton Rouge, 951 So.2d at 1120 (trial court erred in designating as final a partial judgment that sustained an exception of prescription and dismissed some, but not all, of a party’s Indaims). Accordingly, this court lacks jurisdiction to consider the appeal. See La. Code Civ. Pro. arts. 1911B and 2083.

This court has the discretion to convert an appeal to an application for supervisory writs and rule on the merits of the application. Stelluto v. Stelluto, 05-0074 (La. 6/29/05), 914 So.2d 34, 39. However, there are limitations on this grant of authority. In Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981), the Louisiana Supreme Court directed appellate courts to consider an application for supervisory writs under their supervisory jurisdiction, even though relief may be ultimately available to the applicant on appeal, when the trial court judgment was argu ably incorrect, a reversal would terminate the litigation (in whole or in part), and there was no dispute of fact to be resolved. See also Best Fishing, Inc. v. Rancatore, 96-2254 (La.App. 1 Cir. 12/29/97), 706 So.2d 161, 166-67.

We decline to convert this matter to an application for supervisory writs. For the reasons already provided, a reversal of the trial court’s judgment would not terminate the litigation, in whole or in part, because additional claims remain pending between the parties. The parties have an adequate remedy by review on appeal after a final judgment is rendered. See Boutte v. Meadows, 13-1189, 2014 WL 651754 (La. App. 1 Cir. 2/18/14).

CONCLUSION

The trial court improperly designated the December 16, 2015 judgment as a final judgment pursuant to Louisiana Code of Civil Procedure article 1915B(1); therefore, we dismiss the appeal for lack of appellate jurisdiction. Costs of this |inappeal are assessed one-half to Earl Malus and Karen Holbert Malus, and one-half to Adair Asset Management, LLC. This matter is remanded to the trial court for further proceedings.

APPEAL DISMISSED; CASE REMANDED.

      . Pursuant to Louisiana Revised Statute 47:2121 C(l), a tax sale purchaser acquires a "tax sale title” that is not translative of ownership until the expiration of the redemptive period. Adair Asset Management, LLC subsequently conveyed any and all interest in the property to ' Adair Holdings, LLC, which thereafter transferred any and all mineral rights in the property to Lorand, LLC. All three entities are defendants herein and will be collectively referred to as "Adair.”

      . On October 22, 2015, the trial court signed an amended judgment that modified the original judgment to include the name of the Sheriffs counsel in the appearance of counsel set forth therein.

      . Cf. Harder v. Wong, 13-1144, 2014 WL 651556 (La. App. 1 Cir. 2/18/14) (court of appeal reviewed a judgment nullifying a tax sale rendered in a possessory action after a trial on the merits of both claims).

      . We note that in Central Properties v. Fairway Gardenhomes, LLC, 16-0111, 204 So.3d 240, 2016 WL 4956713 (La. App. 1 Cir. 9/16/16), this court maintained an appeal of a partial judgment denying a petition to quiet title on property purchased at a tax sale. In contrast to the judgment herein, the judgment in that case adjudicated all of the claims between two parties in the litigation. See Central Properties, 204 So.3d at 244-45, 2016 WL 4956713 at *3; see also La. Code Civ. Pro. art. 1915A(1). On that basis, Central Properties is distinguishable from the present case.

      . Adair filed a motion for leave seeking permission to file a supplemental brief addressing the certification of the partial judgment. That motion is denied.


author: HIGGINBOTHAM, J.

text:
    Brittany HASBERT Individually and on Behalf of her minor son, Derrick Albert, Jr., and Derrick Albert, Sr. v. The RECREATION AND PARK COMMISSION FOR THE PARISH OF EAST BATON ROUGE
    NO. 2016 CA 0643
    Court of Appeal of Louisiana, First Circuit.
    December 22, 2016

      Jordan Faircloth, James R. Raines, Chris D. Billings, Baton Rouge, LA, Attorneys for Defendant-Appellee, The Récre-ation and Park Commission for the Parish of East Baton Rouge
    Russell W. Beall, William W. Thies, Kenneth A. Doggett, Baton Rouge, LA, Attorneys for Plaintiffs-rAppellants, Brittany Hasbert-Individually and on Behalf of her minor son, Derrick Albert, Jr., and Derrick Albert, Sr.
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

Un this personal injury suit, plaintiffs, individually and on behalf of their minor child who was injured in an accident at a public park, appeal a summary judgment granted in favor of defendants, dismissing plaintiffs’ claim for damages.

BACKGROUND

On August 3, 2011, two-year-old Derrick Albert Jr. (DJ) was at Independence Park with his grandmother, Toni Palmer, to watch a football practice. While at the park, DJ’s grandmother stopped to speak to the cheerleader coach, Toisha Banks, and DJ proceeded to climb a set of spectator bleachers with another child, who was approximately ten years old. DJ fell from the bleachers and landed on his back on a concrete surface. DJ’s parents, Brittany Hasbert and Derrick Albert, Sr., individually and on behalf of DJ, commenced proceedings against the Recreation and Park Commission-for the Parish of East Baton Rouge (BREC), as owner and operator of Independence Park, pursuing damages for the injuries DJ sustained as a result of the fall. On October 23, 2015, BREO filed a motion for summary judgment seeking dismissal of plaintiffs’ claims on the grounds that plaintiffs would be unable to prove that the bleachers were defective, that the bleachers caused DJ’s injuries, or that BREC had actual or constructive notice of an alleged defect in the bleachers. On January 7, 2016, plaintiffs opposed BREC’s motion for summary judgment and filed a cross motion for summary judgment. After a hearing, the trial court signed a judgment on February 18, 2016, granting BREC’s motion for summary judgment, denying plaintiffs’ cross motion for summary judgment, and dismissing plaintiffs’ claims. It is from this judgment that plaintiffs now appeal.

APPLICABLE LAW

On appeal, summary judgments are reviewed de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Sunrise Const. and Development Corp. v. Coast Waterworks, Inc., 2000-0303 (La.App. 1 Cir. 6/22/01), 806 So.2d 1, writ denied, 2001-2577 (La. 1/11/02), 807 So.2d 235. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(B)(2). The initial burden of proof is on the moving party; how ever, if the moving party will not bear the burden of proof at trial, the moving party’s burden on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, the nonmoving party must produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact and the motion should be granted. La. Code Civ. P. art. 966(C)(2).

A genuine issue is a triable issue. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Id. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. King v. Illinois Nat. Ins. Co., 2008-1491 (La. 4/3/09), 9 So.3d 780, 784. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive l4law applicable to the case. Manno v. Gutierrez, 2005-0476 (La.App. 1 Cir. 3/29/06), 934 So.2d 112, 116.

The applicable substantive law in this case is set forth in La. R.S. 9:2800, titled limitation of liability for public bodies. Under La R.S. 9:2800, in order to prove BREC, as a public body, is liable for damage caused by the condition of a thing, plaintiffs must establish: (1) custody or ownership of the defective thing by the public entity; (2) the defect created an unreasonable risk of harm; (3) the public entity had actual or constructive notice of the defect; (4) the public entity failed to take corrective action within a reasonable time; and (5) causation. Temple v. Morgan, 2015-1159 (La.App. 1 Cir. 6/3/16), 196 So.3d 71, 76, writ denied, 2016-1255 (La. 10/28/16), 208 So.3d 889. Louisiana Revised Statute 9:2800(D) defines constructive notice as “the existence of facts which infer actual knowledge.” Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. See Goza v. Parish of West Baton Rouge, 2008-0086 (La.App. 1 Cir. 5/5/09), 21 So.3d 320, 329, writ denied, 2009-2146 (La. 12/11/09), 23 So.3d 919, cert denied, 560 U.S. 904, 130 S.Ct. 3277, 176 L.Ed.2d 1184 (2010). Failure to meet any one statutory element will defeat a negligence claim against a public entity. See Coleman v. Wal-Mart Stores, Inc., 98-0124 (La.App. 1 Cir. 11/6/98), 721 So.2d 1068, 1072; Breitling v. Shreveport, 44, 112 (La. App. 2d Cir. 5/13/09), 12 So.3d 457, 459, writ not considered, 2009-1330 (La. 9/25/09), 18 So.3d 95.

DISCUSSION

A determination of whether the trial court properly granted summary judgment dismissing plaintiffs’ claims against BREC hinges on whether plaintiffs failed to establish a prima, facie case of liability of a public entity under La. R.S. |s9:2800. Pursuant to that statute, plaintiffs have the mandatory burden of proving that the bleachers at Independence Park had a defect that created an unreasonable risk of harm, BREC had actual or constructive notice of the defect and failed to take any corrective action within a reasonable time, and the defect caused DJ’s injuries.

In favor of its motion for summary judgment, BREC presented the affidavit of David Noland, who is the senior risk manager for BRE C, attested that there were no reported complaints or incidents related to the alleged defects in the bleachers at Independence Park prior to DJ’s fall. Mr. Nolan also attested that BREC produced routine monthly inspection reports of Independence Park, including the bleachers, and the reports indicated that the subject bleachers were free of defects prior to the accident. Mr. Noland further attested that plaintiffs’ lawsuit was the first and only complaint involving the bleachers at issue.

BREC also introduced the deposition testimony of Justin Smith as a representative of BREC. In his deposition, Mr. Smith estimated that the bleachers had been at the Independence Park location since the 1980s and were routinely inspected for safety hazards.

BREC also introduced deposition testimony of Ms. Banks and Ms. Palmer, both of whom acknowledged that DJ was walking up the bleachers with a ten-year-old child, and stated that did not see how DJ fell from the bleachers.

In its petition and in opposition to BREC’s motion for summary judgment, plaintiffs contended that a wide gap between the top bleacher seat and the bottom guardrail, as well as unstable wooden boards, were defects in the bleachers that caused DJ to fall. Plaintiffs recognized that no one saw how DJ fell from the bleachers, and he was not with an adult at the time of his fall. In opposition to BREC’s motion for summary judgment, plaintiffs introduced an affidavit of Scott Burton who was a certified playground safety expert. Mr. Burton attested that the bleachers DJ fell from were not in compliance with the Consumer Products Safety | (¡Commission Bleacher Guidelines (CPSCBG). BREC does not dispute that the bleachers do not meet the CPSCBG, but points out that guidelines are purely voluntary recommendations and not mandatory regulations. Thus, BREC not being in compliance with the voluntary guidelines does not per se prove an unreasonable risk of harm. See Pesson v. Reynolds, 97-0150 (La.App. 1 Cir. 11/13/98), 727 So.2d 507, 511, writ denied, 99-0875 (La. 5/7/99), 741 So.2d 657. Additionally, any gap between the top bleacher seat and the bottom guard rail was open and obvious to everyone who might potentially encounter the bleachers. See Bufkin v. Felipe’s Louisiana, LLC, 2014-0288 (La. 10/15/14), 171 So.3d 851, 856.

Plaintiffs also introduced the deposition testimony of Ms. Banks, who described the bleacher boards as “wobbly” when they were used to take cheerleader pictures approximately six weeks before DJ’s accident. Ms. Banks acknowledged that the cheerleaders did not use the back row, where plaintiffs claim DJ fell from, when taking their pictures, and Ms. Banks stated that she did not report to BREC regarding the condition of the bleachers. .

After conducting a de novo review of the evidence, we conclude that BREC showed that there was an absence of factual support for essential elements of plaintiffs’ claims, specifically that BREC had actual or constructive notice of any dangerous condition or defect in the bleachers at Independence Park. There were no prior complaints or incidents related to a gap between the bottom bleacher seat and the top rail prior to DJ’s accident, or to the stability of the boards, and. the monthly inspection reports provided by BREC did not present any safety concerns regarding the bleachers. Thus, we find no error in the trial court’s judgment granting BREC’s motion for summary judgment.

CONCLUSION

For the foregoing reasons, the February 18, 2016 judgment of the trial court granting summary judgment in favor of BREC, denying plaintiffs’ cross motion for [7summary judgment, and dismissing plaintiffs’ claims is affirmed. All costs of the proceedings are assessed to plaintiffs, Brittany Hasbert and Derrick Albert, Sr., individually and on behalf of their minor child.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the act. Although plaintiffs’ cross motion for summary judgment was filed after the effective date of the act, because BREC’s motion for summary judgment was “pending adjudication’’ prior to the effective date of the act, and all of plaintiffs’ assignments of error relate to the granting of BREC's motion for summary judgment, we refer to the former version of the article in this case. See Acts 2015, No. 422, §§ 2 and 3.