Betsy Hooper, John Hooper, Darryl Cleveland and Michael Mannino VS Wisteria Lakes Subdivison, CJS Development, Calvin Blount and Steve Cantu
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT i C 2013 CA 0050 BETTY HOOPER JOHN HOOPER Dt1RRYL CLEVELAND AND MICHAEL MANNINO VERSUS WISTERIA LAKES SUBDIVISION CJS DEVELOPMENT CALVIN BLOUNT AND STEVE CANTU Judgment Rendered EP 1 3 2 Appealed from the 19 Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 550 400 Honorable Todd Hernandez Judge Michael J Uter Baton Rouge LA Attorney for Appellees Plaintiffs Betsy and John Hooper Daniel A Reed Attorney for Appellant Baton Defendant Rouge LA Thomas D Fazio Baton Rouge LA BEFORE CJS Development LLC Attorney for Appellants Defendants Betty LeSage Thompson and the Successors of Thelma Helen LeSage Summers and Alice Fay Bennett LeSage WHIPPLE C WELCH AND CRAIN JJ J WELCH J In this boundary dispute the defendant owner of certain immovable recard property CJS Development L CJS and the third party defendants C former record owners of that same property Leo Summers as successor to Thelma Helen LeSage Summers Betty Rose LeSage Thompson and Tonya Faye LeSage as successor to Alice Faye Bennett LeSage collectively the LeSage defendants appeal a judgment in favor of the plaintiffs of adjoining immovable owners property Betsy Hooper and John Hooper collectively the Hoopers declaring that the Hoopers acquired ownership of a portion of CJS property by thirty s year acquisitive prescription and awarding damages to the Hoopers for CJS removal s of trees from their property The Hoopers have answered the appeal seeking treble damages Finding no error in the judgment of the trial court we affirm the judgment of the trial court and deny the answer to appeal FACTUAL AND PROCEDURAL AISTORY By act of sale dated April 8 1961 Henry W Hooper plaintiff John s Hooper father acquired a tract of immovable property in East Baton Rouge Parish from Laurence L Summers By act of sale dated July 12 1965 Betsy Hooper then Betsy Hissong acquired a tract of immovable property in East Baton Rouge Parish adjacent to the property owned by Henry Hooper Betsy Hooper has owned and lived on that property continuously since that date Eventually Betsy Hooper manied John Hooper Following the death of Henry Hooper Henry Hooper tract of immovable property was conveyed by the other s 1 Thelma Helen LeSage Suminers is now deceased 2 Alice Faye Bennet LeSage is now deceased 3 After this act of sale Laurence Summers remained the owner of several adjacent tracts of land Laurence Suminers is also the ancestor to the property owned by Betsy Hooper title in hereinafrer described 4 According to the act of sale this piece of immovable property was acquired by Betsy Hooper and hex then husband Myron E Hissong Betsy Hooper testified at trial that she received her sinterest in this property pursuant to a community property settlement husband 2 heirs of Henry Hooper to the Hoopers by act of cash sale dated June 1992 Together these two properties comprise the Hooper property By act of cash sale dated September l 2006 C7S acquired from the LeSage defendants 52 acres of immovable property in East Baton Rouge Parish This 37 property is adjacent to and contiguous with the Hooper property as well as property owned by Alvin McCloud Michael Mannino and Darryl Cleveland CJS through its members Calvin Blount and Steve Cantu purchased the property from the LeSage defendants with the intent to develop it as Wisteria Lakes Subdivision Shortly after purchasing the property a dispute arose between CJS and the Hoopers regarding the ownership of approximately 1 of an acre that was located 4 between the record boundary of the Hooper property and an old fence line which the Hoopers believed was the boundary between their property and the LeSage property now owned by CJS Apparently the old fence line had been constructed around 1931 by Philo and Pinkie LeSage in order to keep cattle on the LeSage property and had been constructed in a straight line along or close to the entire boundary of the LeSage property except at the boundary of what is now the Hooper property where the fence was constructed well inside the boundary line Thus the Hoopers claimed that the old fence line was the boundary between the two properties Notwithstanding the boundary dispute CJS began clearing trees from the property Therefore on December 15 2006 the Hoopers filed a petition for 5 The act of cash sale does not disclose the date in June that it was executed on however the act of sale was filed and recorded on June 25 1992 6 Apparently the LeSage defendants acquired this property from Philo and Pinkie LeSage These properties are comprised of property that was formerly owned by the Suimners family 8 A boundazy dispute also azose between CJS and Darryl Cleveland and Michael Mannino Mr Cleveland and Mr Mannino also maintained that the old fence line was the boundary between their property and the LeSage property However in that azea the old fence line was along CJS or close to the record boundazy beriveen the properties 3 injunction and to stop the development of the subdivision against CJS Mr Blunt Mr Cantu and Wisteria Lakes Subdivision In the petition the Hoopers alleged that although CJS asserted ownership of the disputed area by virtue of a title presented to them at the purchase of the property they had acquired ownership of the property by virtue of acquisitive prescription having corporeally possessed the property for mare than thirty years in accardance with La C art 3486 et seq Accordingly the Hoopers requested a temporary restraining order and thereafter an injunction to enjoin the defendants from any further action on the disputed area o In response CJS filed a third demand far warranty of title against the party LeSage defendants seeking in the event of an eviction from the disputed area of the property by the Hoopers to recover the purchase price or a portion thereo fl as well as to recover any other damages sustained by CJS Thereafter CJS re commenced clearing trees from the property The Hoopers then filed an amended petition seeking damages for the removal of trees from the property in the amount of three times the market value of the trees itreble damages e Following a bench trial the trial court rendered judgment in favor of the Hoopers and against CJS finding that the Hoopers had proven their claim of thirty year acquisitive prescription to the disputed area Additionally the trial court rendered judgment in favor of the Hoopers and against CJS in the amount of 00 500 12 plus judicial interest from the date of demand representing damages caused to the Hoopers property i removal of trees by C75 Lastly the trial e the court rendered judgment dismissing the third demand of CJS against the party LeSage defendants 9 Mr Cleveland and Mr Mannino were also plaintiffs in the petition Apparently Mr Cleveland and Mr Mannino resolved their boundary dispute with CJS however the record does not contain a dismissal of their claims According loto the minutes of the trial court the hearing on the request for injunctive relief was continued without date 4 A judgment in accordance with the trial court ruling was signed on May 3 s 2012 and it is from this judgment that CJS and the LeSage defendants have appealed On appeal CJS contends that the trial court erred in 1 finding that the Hoopers had carried their burden of proving continuous uninterrupted peaceable public and unequivocal adverse possession of land c the survey boundaries utside described in their deeds i the disputed area for any period of thirty years 2 e finding that CJS and its predecessors in title had not possessed the disputed area with just title for ten years priar to the action being filed 3 finding that the trees removed from the disputed property had a value separate and apart from the value of the immovable property on which the trees were located or their value as timber 4 permitting an urban forester to offer opinion evidence on the evaluation of trees and 5 dismissing CJS third demand against the LeSage defendants s party where the sale document on which it was based was introduced into evidence On appeal the LeSage defendants contend that the trial court erred in finding that the Hoopers acquired any portion of the property sold by the LeSage defendants to CJS by thirty acquisitive prescription year Additionally the Hoopers have answered the appeal seeking an award of treble damages and to cast individual defendants Mr Blount and Mr Cantu solidarily liable with CJS for all damages LAW AND DISCUSSION Boundarv Action and Acquisitive Prescription In a boundary action the court shall render a judgment fixing the boundary between contiguous lands in accardance with the ownership or possession of the parties La C art 3693 The boundary shall be fixed according to ownership P of the parties however if neither party proves ownership the boundary shall be fixed accarding to the limits established by possession La C art 792 In a boundary action a party that proves ownership by an unbroken chain of 5 transfers from a previous owner or by virtue from a more ancient title from a common author prevails unless the adverse party proves ownership by acquisitive prescription King Farm Inc v Concordia Parish Police Jury 97 La s 1056 App 3 Cir 3 709 So 953 956 writ denied 98 La 9 724 98 6 2d 1450 98 18 2d So 748 uotin Yiannopoulos Properky 268 2 Louisiana Civil Law Treatise 527 3 ed 1991 Thus ownership of immovable property under record title may be eclipsed and superseded by ownership acquired under prescriptive title Secret Cove L v Thomas 2002 La App 1 Cir 11 862 So 1010 C 2498 03 7 2d 1015 writ denied 2004 La 4 869 So 889 0447 04 2 2d Under the codal provisions on acquisitive prescription a possessor lacking good faith and just title may acquire prescriptive title to land by corporeally or possessing a tract for thirty years with the intent to possess as owner Id Corporeal possession is the exercise of physical acts of use detention or enjoyment over a thing La C art 3425 Thirty years of corporeal possession confers prescriptive title upon the possessor only when it is continuous uninterrupted peaceable public and unequivocal and confers title only to such immovable property as is actually corpareally possessed Secret Cove L 862 So at 1015 see also C 2d La C arts 3424 3426 3476 3486 3487 and 3488 For purposes of acquisitive prescription without title possession extends only to that which has been actually possessed La C art 3487 Actual possession must be either inch possession or possession within enclosures by Secret 2d Cove L 862 So C at 1015 According to well Louisiana settled jurisprudence an enclosure is any natural or artificial boundary Id citin La C art 3426 comment d The party who does not hold title to the disputed tract has the burden of proving actual possession within enclosures sufficient to establish the limits of possession with certainty by either natural or artificial marks giving 6 notice to the world of the extent of possession exercised Secret Cove L C 862 So at 1015 2d One is presumed to intend to possess as owner unless he began to possess in the name of and for another La C art 3427 The ntent to possess as owner may be inferred from all af the surroundir gfacts and circumstances Secret Cove C L 862 So at 1015 2d Under La C art 794 a title holder may acquire more land than his title calls far by possessing property beyond his title for thirty years without interruption and within visible bounds Such a title holder may attain the thirty year possessory period is necessary to perfect prescriptive title in the which absence of good faith and just title tacking on to the possession of his by ancestor in title La C arts 794 and 3442 Secret Cove L 862 Sa2d at C 1016 1015 Under La C art 794 the privity of title between the possessar and his ancestor in title need not extend to the property to which the possessor asserts prescriptive title under this article the juridical link or written instrument that passes to the possessor from his ancestor need not encompass or include the title in particular property to which the possessor claims prescriptive title Secret Cove C L 862 So at 1016 2d Whether a party has possessed property for purposes of thirty year acquisitive prescription is a factual determination by the trial court and will not be disturbed on appeal unless it is clearly wrong Id Additionally boundary location is a question of fact and the determination of its location by the trial court should not be reversed absent manifest error Id Where factual findings are based on determinations regarding the credibility of witnesses the trier of fact findings s demand great deference and are virtually never manifestly erroneous or clearly wrong Rosell v ESCO 549 So 840 844 La 1989 Where there is conflict 2d in the testimony reasonable evaluations of credibility and reasonable inferences of 7 fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are as reasonable Id It is only when documents or objective evidence so contradict the witness story or the story itself s is so internally inconsistent or implausible o its face that a reasonable fact finder would not credit the wimess story that the court of appeal may find manifest s error or clear wrongness even in a finding purportedly based upon a credibility determination Rosell 549 So at 844 But where such factors are not 2d 845 present and a fact finding is based on its decision to credit the testimony s finder of one of two or more witnesses that finding can virtually never be manifestly erroneous or clearly wrong Rosell 549 So at 845 2d In this case the trial court provided written reasons for judgment as follows The court could reiterate verbatim the testimonial and documentary evidence that was presented at trial but more practical is to conclude what the evidence has revealed to the court The court in review of all the evidence presented finds that the plaintiffs have proven by a preponderance of the evidence actual clear and open possession of the area in dispute for greater than 30 years There is an abundance of evidence to conclude that the plaintiff possession s was both continuous and interrupted sic beyond the required 30 year acquisitive prescription period required by law to acquire ownership The Hooper openly possessed the property to the tree line s fence since 1965 There was no evidence of any substance to rebut this established fact The court concludes that the plaintiffs have acquired the strip of land in dispute by acquisitive prescription Both CJS and the LeSage defendants contend that the trial court erred in finding that the Hoopers acquired any portion of the property sold by the LeSage defendants to CJS by thirty acquisitive prescription year Specifically both argue that the Hoopers did not carry their burden of proving continuous uninterrupted peaceable public and unequivocal adverse possession of land outside the survey boundaries described in their deeds for any period of thirty years 8 Based on our review of the evidence in this case we find that the trial s court factual finding that the Hoopers possessed the disputed area up to the old fence line as owners for thirty years to be reasonably supported by the testimony of Betsy Hooper John Hooper Michael Hooper Casey McCoun Alvin McCloud Terry Summers and Michael Mannino and it is not clearly wrong The testimony established that Betsy Hooper has lived on the Hooper property or a part thereo fl since 1965 The Hoopers and all the owners of neighboring property have always considered the old fence line to be the boundary between the Hooper property and former Summers property and the LeSage property The testimony also established that the Hoopers including Henry Hooper continuously possessed and exercised rights of possession over the property to the fence line The evidence established that Betsy Hooper considered the area in dispute to be her backyard that her children played in the backyard the area in dispute up to the fence line that family gatherings and volleyball games were held in the area in dispute and that there was a clothesline in the disputed area The testimony further established that the Hoopers maintained the Hooper property and the property up to the fence line by planting a garden and trees in the disputed area and mowing the grass up to the fence line Thus we must conclude that the evidence supports the trial court s conclusion that the nature and extent of that possession satisfied the requirements of acquisitive prescription We also agree with the trial court that neither CJS nor the LeSage defendants produced any competent evidence to contradict the evidence offered by the Hoopers or to establish that the old fence line was not considered the boundary between the LeSage and Hooper property CJS and the LeSage defendants point to 11 We also find that the trial court apparent application of the legal principles of tacking s under La C art 794 was also correct thereby allowing the possession beyond the title of Henry Hooper to be added to that of Betsy and John Hooper to reach the requisite thirty years for ownership under acquisitive prescription 9 a 1994 survey commissioned and recorded by the Hoopers which depicted the boundary between the Hooper property and the LeSage property at the record boundary However Betsy Hoop testified that the purpose of that survey was to r subdivide re the Hooper property by cutting out a tract of land which was on the opposite side of the Hooper property as the area in dispute to be conveyed to their daughter for the construction of a home CJS and the LeSage defendants also point to two inquiries by John one Hooper to Mr Leo Summers married to one of the LeSage defendants and one to Mr Brandon Rogillio the real estate agent for the sale of the LeSage property to CJS John Hooper inquired about purchasing some of the wherein LeSage property However these inquiries were not acknowledgements that the disputed area was not possessed as owner by the Hoopers but merely an expression of interest in purchasing an undesignated portion of the LeSage property Accordingly we find no manifest error in the trial court judgment on s acquisitive prescription and the boundary fixed between the Hooper property and the property of CJS es Dama In addition to finding that the Hoopers proved ownership of the disputed area by thirty acquisitive prescription the trial court also awarded damages year for the fair market value of the trees that CJS removed from the area in dispute Specifically with regard to damages the trial court reasons for judgment s provide The question then becomes to what extent the plaintiffs were damaged as a result of the defendants removal of trees on the strip of land that was in dispute Evidence suggests that the defendants were notified sometime in 2006 of a potential dispute over the boundary line and that in December of 2006 the defendants began removing trees from the area There is a dispute as to how much the s defendant actually k of the boundary dispute prior to the tree new removals in December 2006 and February 2007 There is sufficient evidence to support the conclusion that the 10 s defendant had knowledge of the dispute over the boundary prior to the removal of trees in February 2007 There should have been a halt to all tree removal sometime after receiving notice in December of 2006 The action taken by the defendants up until December 2006 was done with them believing that they had the right to do so Up to that point they relied upon what a survey revealed The court concludes that the plaintiffs have suffered damages due to the removal of trees inside of the area in dispute The court has considered the testiznony of Dr Maicolm Guidry the plaintiff s forestry expert in determining a fair and just award to compensate them for their los After review of the testimony and law the court s believes that the fair market value of the plaintiff loss amounts to s the sum of 12 The defendants shall pay unto the plaintiffs 00 500 the sum ofdamages plus judicial interest from the date of demand CJS first contends that the trial court erred in awarding damages because the trees did not have a value separate and apart from the value of the immovable property on which they were located or their value as timber CJS argues that in Louisiana all property is either movable ar immovable See La C art 475 CJS further argues that standing trees are immovables and when owned by the owner of the land on which they sit are considered component parts of the land whereas cut trees or logs are immovables See La C arts 463 and 464 Thus CJS contends that standing trees only have value in two ways they enhance ither the value of the land on which they sit ar they have potential value far sale as timber and in this case there was no proof of either However the trial court reasons for judgment reflect that it was awarding s damages for the removal or destruction of trees that were on the Hooper side of the fence line in the area in dispute after this boundary action was filed by the Hoopers The trial court found that although CJS had been in good faith in initially tearing down trees in December 2006 even though they may have been aware of a potential dispute over the boundary line at the time they re removing commenced trees in February 2007 CJS had actual knowledge of the boundary dispute and were thus liable for the damage they caused Thus it appears the damages awarded by the trial court were based on general tort law i the tort of trespass e 11 and La R 3 See La C art 2315 Callison v Livingston Timber S 4278 1 Inc 2002 La App l Cir 5 849 So 649 652 1323 03 9 2d A person injured by trespass or the fault of another is entitled to full indemnification for the damages ca Callison 8 So at 652 Where there xsed 9 2d is a legal right to recovery but the damages cannot be exactly estimated the courts have reasonable discretion to assess same based upon all circumstances the facts and Id Damages are recoverable even though the tortfeasor acts in good faith Id Louisiana Revised Statutes 3 1provides in part 4278 A 1 It shall be unlawful for any person to cut fell destroy remove or to divert for sale or use any trees or to authorize or direct his agent or employee to cut fell destroy remove or to divert for sale or use any trees growing or lying on the land of another without the consent of or in accordance with the direction of the owner or legal possessor or in accordance with specific terms of a legal contract or agreement 2 It shall be unlawful for any co or co to cut fell owner heir destroy remove or to divert for sale or use any trees or to authqrize or direct his agent or employee to cut fell destroy remove or to divert for sale or use any trees growing or lying on co land owned without the consent of or in accordance with the direction of the other co or co or in accordance with specific terms of a owners heirs legal contract or agreement The provisions of this Paragraph shall not apply to the sale of an undivided tinnber interest pursuant to R S 2 4278 3 B Whoever willfully and intentionally violates the provisions of Subsection A of this Section shall be liable to the owner co owner heir co or legal possessor of the trees for civil damages in the amount of tl times the fair market value of the trees cut felled destroyed ree removed or diverted plus reasonable attorney fees and costs C Whoever violates the provisions of Subsection A of this Section in good faith shall be liable to the owner co co or legal owner heir possessor of the trees for three times the fair market value of the trees cut felled destroyed removed or diverted if circumstances prove that the violator should have been aware that his actions were without 12 The tor of trespass is defined as the unlawful physical invasion of the property or possession of another Versai Management Inc v Monticello Forest Products Corporation 479 So 2d 477 482 In addition it is a tort sometimes called timber trespass to convert or cut fell destroy or remove any trees growing or lying on the land of another without the consent of the owner or legal possessor Id citin former La R 56 redesignated as La R S 1478 A 1 S 1by 1987 La Acts No 144 4278 3 12 the consent or direction of the owner co co or legal owner heir possessor of the trees D If a good faith violator of Subsection A of this Section fails to make payment under the requirements of this Section within thirty days after notification and demand by the owner co co owner heir or legal possessor the violator shall also be responsible for the reasonable attorney fees and costs of the owner co co or owner heir legal possessor In addition to the amount recoverable under La R 3 damages are S 4278 1 recoverable if supported by the record far the costs of removing stumps and clearing the land after a timber trespass reforestation loss ofaesthetic value buffer zone and mental anguish Callison 849 So at 652 2d Appellate review of general damage awards is limited to determining whether the trial court abused its great discretion Id at 655 The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances peculiar to the case under review Id Abuse of discretion must be clearly demonstrated befare an appellate court may tamper with an award of damages Id Herein after considering the testimony of Dr Malcolm Guidry the plaintiffs expert in the field of urban farestry and the evaluation of trees the trial court determined that the fair and just award to the Hoopers to compensate them for their loss was 12 CJS contends that the trial court erred in permitting 00 500 Dr Malcolm Guidry to offer expert opinion testimony regarding the value of the trees removed from the disputed area and in relying on his testimony in awarding damages to the Hoopers It is well settled that a trial court is accorded broad discretion in determining whether expert opinion evidence should be held admissible and its decision will not be overturned absent an abuse of discretion Williams v Our Lady of the Lake Hospital Inc 2009 La App l Cir 9 22 So 997 1000 0267 09 11 3d 13 Furthermore the trial court is free to accept or reject in whole or in part the testimony of any witness Callison 849 So at 653 2d 654 According to Dr Guidry testimony he has a bachelor s sdegree in general agriculture a master degree in horticultural plant science a master degree in s s urban forestry and a doctorate of education in plant sciences and he has previously been accepted as an expert in Louisiana courts on several occasions Dr Guidry identified 20 trees that were lost or destroyed from the area in dispute or Hooper property by CJS Dr Guidry opined that the trees had an average value of 1each 00 800 Based on Dr Guidry qualifications and the evidence in the record we s cannot say that the trial court abused its vast discretion in allowing Dr Guidry to offer expert opinion evidence on urban forestry and on the value of the destroyed trees or in relying on Dr Guidry testimony to determine the appropriate amount s of damages sustained by the Hoopers From the testimony of the Hoopers and Dr Guidry as well as the photographic evidence offered by the Hoopers the Hoopers lost a significant number of trees as a result of CJS actions and further the s destruction or loss of those trees from their property the area in dispute caused the Hoopers aesthetic loss in that there are no trees along their boundary or no buffer zone between their property and new homes being constructed adjacent to their property in Wisteria Lakes Subdivision Accordingly we cannot say that the trial court award of damages in the amount of 12 was an abuse ofits vast s 00 500 discretion In the Hoopers answer to appeal they contend that pursuant to La R S 1the trial court should have awarded them treble damages for their loss 4278 3 As set forth above La R 3 provides far an award of treble damages for S 4278 1 13 Specifically Dr Guidry identified three crepe myrtles of mature size three dogwoods of mature size four pine trees that ranged in trunk size from 14 inches four pecan trees that 18 ranged in trunk size from 14 inches and six oak trees that ranged in trunk size from 18 24 45 inches 14 willfully and intentionally cutting or destroying the trees belonging to another or for good faith violators if circumstances prove that the violator should have been aware that his actions were without the consent ar direction of the owner or legal possessor of the trees La R 3 The trial court denied the S 4278 Cl 1 Hoopers demand for treble damages and in doing so mplieity concluded either that CJS actions were not willful or intentional or that the evidence did not s support the conclusion that CJS should have known that it crossed onto the Hoopers property Notably the trial court described CJS behavior warranting s the award of damages as negligent removal of trees and brush from the area in dispute after having been placed on actual notice of the plaintiffjs claims to the property where the trees and bushes were removed Since the treble damages provisions of La R 3 are punitive in nature they must be strictly S 4278 1 construed it is only when a party clearly violates its provisions that the party will be assessed the severe penalty of treble damages Callison 849 So at 656 2d Accordingly we find no error in the trial court denial of the Hoopers claim for s treble damages The Hoopers also contend that the trial court erred in not holding Mr Blount and Mr Cantu personally liable for their damages Mr Blount and Mr Cantu are members of CJS entity from its CJS is members a limited liabilit y com p an y w hich is a separate le g al See Charming Charlie Inc v Perkins Rowe Associates L 2011 La App ls Cir 7 97 So 595 598 The C 2254 12 10 3d evidence in the record revealed that all actions taken by Mr Blount and Mr Cantu with regard to the Hoopers property or the area in dispute were in their capacities as members or agents of CJS Hence they are not personally liable for any debt The trial court written reasons for judgment and the judgment were silent with respect to the s Hoopers request for treble damages Silence in a judgment as to any issue that was placed before the court is deemed a rejection of that demand or issue Hayes v Louisiana State Penitentiary 2006 La App 1 Cir 8 970 So 547 554 n writ denied 2007 0553 07 15 2d 9 2258 La 1 973 So 758 Thus the silence in the judgment as to the Hoopers reque 08 25 2d t for treble damages is deemed a denial of that request for relief 15 obligarion ar liability of CJS See La R 12 and B Additionally no S 1320 A evidence was offered by the plaintiffs to establish tiiat either Mr Blount or Mr Cantu engaged in or committed fraudulent or ultra vires acts or otherwise acted in a manner so as to warrant piercing the corporate veil of CJS See La R S D 1320 12 Charming Charlie Inc 97 So at 598 Riggins v Dixie Shoring 3d Company Inc 590 So 1164 1168 La 1991 Accordingly the trial court 2d 69 properly declined to cast the individual defendants Mr Blount and Mr Cantu solidarily liable with CJS for all damages Party Third Demand As previously set forth CJS filed a third demand asserting a wananty party title of claim against the LeSage defendants seeking to recover a portion of the purchase price for the property it did not receive as well as to recover any other damages sustained by CJS The trial court denied and dismissed CJS third s party demand for the following reasons The court awarded damages to the plaintiffjs far CJS negligent s removal of trees and brush from the area in dispute after having been placed on actual notice of the plaintiff claims to the property s where the trees and bushes were removed The damages awarded by this court had nothing to do with CJS reliance upon warranty of title s In addition the c finds that the defendant failed to submit ourt sufficient evidence at the trial showing liability on behalf of the third party defendant In CJS last assignment of errar it contends that the trial court erred in s dismissing its third demand because the sale document on which the sale was party based was introduced into evidence and that if CJS did not get title to all of the property it purchased pursuant to that sale it was entitled to reimbursement from the LeSage defendants for the value of the property it did not receive CJS claims that it paid 16 per acre for the LeSage property and that based upon that 00 000 price it should receive 4for the 4 acre in dispute that it did not receive 00 000 Additionally CJS claims that since the purchase of the property included the trees 16 to the extent the trees had a separate value it was also entitled to reimbursement from the LeSage defendants for that valu i the sum of damages awarded in ee favor of the Hoopers According to the aci of cash sale between CJS and the LeSage defendants the LeSage defendants declared that far and in consideration of the price and sum of Eight Hundred Thirty Thousand Nine Hundred Twenty and 00 Seven 100 00 920 837 receipt of which is acknowledged by the LeSage defendants the LeSage defendants hereby sells and delivers with full warranty of title and subrogation to all rights and actions of warranty the LeSage defendants may have unto CJS the following described property the possession and delivery of which CJS acknowledges The act of cash sale then sets forth the legal description for the 52 acre tract of 37 land known as the LeSage property In the event there is a shortage or surplus of land that the seller was obligated to deliver to the buyer the rights of the parties are governed by La C arts 2492 and 2494 Louisiana Civil Code article 2492 provides If the sale of an immovable has been made with indication of the extent of the premises at the rate of so much per measure but the seller is unable to deliver the full extent specified in the contract the price must be proportionately reduced If the extent delivered by the seller is greater than that specified in the contract the buyer must pay to the seller a proportionate supplement of the price The buyer may recede from the sale when the actual extent of the immovable sold exceeds by more than one twentieth the extent specified in the contract Additionally La C art 2494 provides When the sale of an immovable has been made with indication of the extent of the premises but for a lump price the expression of the measure does not give the seller the right to a proportionate increase of the price nor does it give the buyer the right to a proportionate diminution of the price unless there is a surplus or a shortage of more than one twentieth of the extent specified in the act of sale When the surplus is such as to give the seller the right to an increase of the price the buyer has the option either to pay that increase or to recede from the contract 17 Although CJS claims that it paid 16 per acre for the LeSage 00 000 P ro P ertY the act of cash sale between the LeSage defendants and CJS does not specify a price per measure Rather the act of sale indicates the extent of the premises for the lump sum of 837 Therefore CJS rights with respect to 00 920 s the LeSage defendants are governed by La C art 2494 According to the record the disputed area comprised of Ya of an acre out ofa sale of 52 acres Since the shortage of property conveyed to CJS by the LeSage 37 defendants as a result of acquisitive prescription by the Hoopers was not more than one twentieth of the extent specified in the sale CJS was not entitled to a reduction in the purchase price See La art 2494 To the extent that CJS claims that it GC should be reimbursed far the value of trees ithe damages it was ordered to pay e the Hoopers for the removal of the trees the trial court reasons for judgment s specifically stated that CJS was cast for such damages because CJS removed the trees after it acquired knowledge of the boundary dispute by the Hoopers and that the award of damages to the Hoopers was independent of any warranty of title from the LeSage defendants Accordingly we find no errar in the trial court s judgment denying and dismissing the third claim of CJS against the LeSage party defendants CONCLUSION For all of the above and foregoing reasons the May 3 2012 judgment of the trial court is affirmed and the answer to appeal is denied All costs of this appeal are assessed to the defendant CJS Development L appellant C AFFIRMED ANSWER TO APPEAL DENIED We also note that there was no testimony presented by CJS that it would not have bought the 5237 acxes without the area in dispute Additionally there was no testimony that CJS could not develop the number of lots it intended to develop as a dispute See La C arts 1948 etseq 18 result of the loss of the of an acre area in
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