Martin Dickerson and Oliver Dickerson VS Amanda Davis
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 0776 MARTIN DICKERSON AND OLIVER DICKERSON VERSUS AMANDA DAVIS ET AL Judgment Rendered October 29 2010 Appealed from the Seventeenth Judicial District Court In and for the Parish of Lafourche Louisiana Trial Court Number 103 844 Honorable Ashly Bruce Simpson Judge Rachael Bollinger Carothers Lockport LA Attorney for Plaintiffs Appellees Martin Dickerson and Oliver Dickerson Michael S Zerlin Melissa LeBlanc Attorneys for Defendant Appellant Thibodaux LA Amanda Davis BEFORE CARTER C GAIDRY AND WELCH JJ J WELCH J Amanda Davis appeals a judgment of the trial court dismissing her petitory action recognizing restoring and maintaining possession of the property at issue with Martin Dickerson and Oliver Dickerson the Dickersons and ordering Amanda Davis to remove the mobile home from the property at issue For reasons that follow we affirm the judgment of the trial court FACTUAL AND PROCEDURAL HISTORY On February 11 1991 pursuant to an Act of Cash Sale the Dickersons acquired from Eleanor Jones Lee in her capacity as the administratrix of the Estate of Thomas Harris a tract of land described as follows A certain lot of land situated in the Parish of Lafourche State of Louisiana on the right descending bank of Bayou Lafourche at about one mile above the town of Thibodaux measuring thirtyfive feet front by five hundred fortyfive feet in depth bounded above by land belonging to the Thibodaux Brick Works now or formerly below by land of Julia Davis now or formerly in front by other property of Lydia Brown now or formerly and in the rear by property of Henry Ricks now or formerly Together with all the buildings and improvements thereon and all rights ways privileges and servitudes thereunto belonging or appertaining Being the same property acquired by Thomas A Harris from Marguerite Davis Bean et al by Cash Sale under Private Signature dated July 17 1966 and recorded on November 12 1968 COB 395 Page 97 Entry Number 299575 see also May 3 1948 Act Cash Sale recorded on May 3 1948 in COB 133 Folio 126 Entry Number 77941 Pursuant to a cash sale under private signature on July 17 1966 Thomas Harris had acquired the following tract of land from Marguerite Davis Bean Maude Davis Sartin Gladiola Davis and Gerald Howard A certain lot of land situated in the Parish of Lafourche State of Louisiana on the right descending bank of Bayou Lafourche at about one mile above the town of Thibodaux measuring thirtyfive feet front by five hundred and fortyfive feet in depth bounded above by land belonging to the Thibodaux Brick Works now or formerly below by land of Julia Davis now or formerly in front by other property of Lydia Brown now or formerly and in the rear by property The act of sale specifically excluded two parcels from the described property that were previously conveyed by Thomas Harris 2 of Henry Ricks now or formerly Together with all the buildings and improvements thereon and all rights ways privileges and servitudes thereunto belonging or appertaining Since the February 11 1991 act of sale the Dickersons have possessed the described property and paid the property taxes In 1998 Amanda Davis moved a mobile home onto a piece of property which she believed belonged to her pursuant to a quitclaim deed executed in her favor by her aunt Marguerite Davis Bean The quitclaim deed to Amanda Davis described the property as follows Lot 35 x 545 RB BLaf 1 mile above Thibodaux Above by Thibodaux Brick Works Below by Julia Davis Less Lots Sold Approx 303 Left 133 126 351 586 355 288 36765 1053 311 Tax Sale 701982 Act of Co 1055 834 Act of Correction 105670 Less Future Mineral Rights 500 122 Notre Dame St Apparently Marguerite Bean Davis had acquired this property pursuant to a tax deed dated June 28 1989 2 After numerous discussions and disputes between the Dickersons and Amanda Davis concerning the encroachment of Amanda Davis mobile home in s May 2006 Amanda Davis erected a temporary fence on the property which blocked the Dickerson access to their property The Dickersons then instituted a s possessory action against Amanda Davis seeking to be restored to the possession of their property damages and a preliminary injunction ordering Amanda Davis to remove her mobile home from encroaching on their property Amanda Davis responded by asserting ownership of the property or title to the property in herself thereby converting the suit to a petitory action and judicially confessing possession of the property by the Dickersons in the possessory action See La P C art 3657 2 The property description contained in the tax deed is as follows Lot 35 x 545 RB BLaf 1 mile above Thibodaux Above by Thibodaux Brick Works Below by Julia Davis Less Lots Sold Approx 303 Left 133 126 351 586 355288 36765 3 After a trial on the merits the trial court determined that the quitclaim deed did not sufficiently describe the property so that it could be located and therefore was not a juridical act translative of ownership Thereafter the trial court rendered judgment against Amanda Davis and in favor of the Dickersons dismissing Amanda Davis petitory action recognizing restoring and maintaining s possession of the property in dispute to the Dickersons and casting Amanda Davis with all costs The trial court subsequently granted a new trial on its own motion to grant the preliminary injunction ordering Amanda Davis to remove her mobile home from the property in the possession of the Dickersons A judgment reflecting the trial court rulings was signed on January 11 2010 and from this s judgment Amanda Davis now appeals On appeal Amanda Davis asserts that the trial court manifestly erred in determining that the property description in the quitclaim deed was insufficient to be a juridical act translative of ownership and in admitting lay testimony regarding whether Amanda Davis trailer was encroaching on property possessed by the s Dickersons LAW AND DISCUSSION The Petitory Action As previously noted although this matter originally commenced as a possessory action Amanda Davis asserted title to the property in herself thereby converting the suit to a petitory action and confessing the Dickersons possession See La C art 3657 P To obtain a judgment recognizing ownership of immovable property or a real right therein the plaintiff in a petitory action shall 1 prove that he has acquired ownership from a previous owner or by acquisitive prescription if the court finds that the defendant is in possession thereof or 2 prove a better title thereto than the defendant if the court finds that the latter is not 3 See La C art 1971 P 0 in possession thereof La C art 3653 see also La C art 531 providing P that o who claims the ownership of an immovable against another in ne possession must prove that he acquired ownership from a previous owner or by acquisitive prescription and i neither party is in possession he need only prove f better title In this case Amanda Davis asserted both that she acquired ownership of the property from the previous owner i Marguerite Davis Bean and by acquisitive e prescription of ten years i possession of the property for ten years in good e faith and with just title See La C art 3475 A just title is a juridical act such as a sale exchange or donation sufficient to transfer ownership or another real right La C art 3483 Thus in order to either acquire ownership of the property from Marguerite Davis Bean or by good faith acquisitive prescription Amanda Davis had to prove she acquired the property by a juridical act translative of ownership In this regard she relied on the quitclaim deed executed in her favor by Marguerite Davis Bean Thus the issue is whether the quitclaim deed translated ownership of the property to Amanda Davis A quitclaim deed at common law is recognized in the civil law as an assignment of rights without warranty See La C art 2502 comment c A quitclaim deed has been held to be a deed translative of title In other words the ownership to immovable property may be as effectually transferred by quitclaim as by any other form of conveyance Loutre Land and Timber Company v Roberts 45 p 6 La App 2 Cir 8 355 nd 10 4 3d So Waterman v Tidewater Associated Oil Co 213 La 588 603 604 35 Sold 225 230 231 La 1948 However for a juridical act to be translative of ownership the property description in the instrument must be such that the property intended to be conveyed or transferred can be located and identified and the general rule is that the description must fully appear within the four corners of the instrument itself or 5 that the instrument should refer to a map plat or deed as part of the description so that same may be clear Loutre Land and Timber Company 45 at p 7 355 3d So at It is not permissible to indulge in speculation when interpreting deeds to real property Id As set forth above the quitclaim deed described the property as follows Lot 35 x 545 RB BLaf 1 mile above Thibodaux Above by Thibodaux Brick Works Below by Julia Davis Less Lots Sold Approx 303 Left 133 126 351 586 355 288 36765 1053311 Tax Sale 701982 Act of Co 1055 834 Act of Correction 105670 Less Future Mineral Rights 500 122 Notre Dame St The trial court concluded that the property description contained in the quitclaim deed did not sufficiently describe the property so that it could be located and identified Specifically the trial court noted that the quitclaim deed had only two of potentially three or four boundaries recorded in the description Above by Thibodaux Brickworks and Below by Julia Davis The trial court also noted that the quitclaim deed had an inadequate designation of the dimensions of the property as it first stated 11 x 545 35 but then stated Less Lots Sold approximately 303 left The trial court then recognized that in accordance with the practice of the assessor of Lafourche Parish the various numbers that were contained within parenthesis on the quitclaim deed reflected the conveyance book followed by the page number For instance the trial court noted that the first entry 133 126 was to be interpreted as conveyance book 133 page or folio 126 The court then stated that while it was allowed to look at extrinsic evidence to assist it in interpreting whether a property description is adequate or sufficient to identify the property there was no extrinsic evidence presented by Amanda Davis Notably the conveyance book pages purportedly identified in the deed were not admitted into 4 In the trial court reasons for judgment it stated that it interpreted RB BLaf to be the s right bank of Bayou Lafourche s The trial court also stated that it interpreted this to be Act of Correction ON evidence Thus from the evidence presented the trial court was unable to determine whether the numerical entries within the property description reflected prior juridical acts in the chain of title or whether those numbers reflected lots that had been sold from the property Additionally the trial court noted that it was also unable to determine whether the actual numbers contained within the quitclaim deed were accurate For instance it was unclear if one would find a juridical act referencing the disputed property in conveyance book 133 on page 126 as suggested by the entry 133 126 After reviewing the record in its entirety the trial court factual finding that s the property description contained within the quitclaim deed did not sufficiently describe the property so that it could be located and identified is reasonably supported by the record and is not clearly wrong The quitclaim deed itself fails to fully describe the property boundaries and size And although there appear to be s references to other documents within the description purportedly to deeds or other documents filed in the Lafourche Parish conveyance recordsthe referenced documents or instruments were not made part of the record Since we are prohibited from speculating when interpreting the quitclaim deem we are unable to determine whether those references make the description of the property clear Thus the trial court ultimate conclusions that the quitclaim deed was not a s juridical act translative of ownership and that Amanda Davis failed to carry her burden of proving that she was the owner of the property either by acquiring the property from a previous owner or by good faith acquisitive prescription was not manifestly erroneous Lay Opinion Testimony In Amanda Davis second assignment of error she asserts that the trial s court erred in admitting lay testimony rather than expert testimony regarding 7 whether her mobile home encroached on property possessed by the Dickersons At the trial of this matter Martin Dickerson testified as to his coownership and possession of the property at issue and to the disturbance of his possession of the property when Amanda Davis moved her mobile home onto it During his testimony he was presented with a property map which included the property at issue and was asked several questions concerning the encroachment of the mobile home on the property Amanda Davis objected to the line of questioning on the basis that Martin Dickerson was not qualified to interpret the map as he did not prepare the map The trial court sustained the objection as to the testimony and then allowed the map to be entered into evidence Thereafter Martin Dickerson was questioned concerning his personal knowledge of the mobile home being placed on and encroaching on the property at issue Based on this testimony at the motion for new trial the trial court granted a preliminary injunction and ordered Amanda Davis to remove her mobile home from the property Amanda Davis argues that it was error to allow Martin Dickerson to offer any opinion as to whether her mobile home encroached upon the property he was possessing and therefore the judgment of the trial court should be reversed Louisiana Code of Evidence article 701 provides If the witness is not testifying as an expert his testimony in the form of opinions or inferences is limited to those opinions or inferences which are 1 Rationally based on the perception of the witness and 2 Helpful to a clear understanding of his testimony or the determination of a fact in issue The trial court is vested with broad discretion in determining whether to admit testimony of lay witnesses as to opinions or inferences under this article La E C art 701 comment b Therefore an appellate court should not disturb a trial 0 s court evidentiary ruling on the admissibility of lay opinion evidence absent an abuse of discretion See Cooper v Louisiana State Department of Transportation and Development 20031847 p 4 La App I Cir 6 04 25 885 So 1211 1214 writ denied 20041913 La 11 885 So 1142 2d 04 8 2d With regard to the testimony of Martin Dickerson that Amanda Davis s mobile home was encroaching on property that he possessed the trial court stated at the hearing on the motion for new trial I do not believe that that is an opinion which would require an expert to testify to I believe lay people are clearly capable of identifying and testifying whether or not something encroaches upon property that they have possessed Thus the trial court apparently concluded that Martin Dickerson testimony was rationally based on his perception and helpful to s the determination of a fact at issue in the case The evidence in the record establishes that Martin Dickerson was very familiar with the property that he possessed and had firsthand knowledge of the encroachment of Amanda Davis s mobile home on that property Therefore based on the record before us we find no abuse of discretion in the trial court ruling admitting lay opinion testimony of s Martin Dickerson or in its subsequent ruling ordering Amanda Davis to remove her mobile home from encroaching on the property at issue CONCLUSION For all of the above and foregoing reasons the January 11 2010 judgment of the trial court is hereby affirmed All costs of this appeal are assessed to the appellant Amanda Davis AFFIRMED E
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