223 So. 3d 1194
La. Ct. App.2017Background
- Creek Management filed a possessory action claiming ownership of a ~40-acre tract after purchasing interests and filing an "affidavit of possession" on June 9, 2014, asserting hostile possession beginning June 6, 2014.
- Creek alleged it performed acts of possession: clearing garbage, cutting trails, posting "No Trespassing" signs, repairing fences, gating the entrance, and attempting repairs to structures.
- Creek admitted it checked Caddo Parish tax records and knew co-owner Beatrice Wesson’s mailing address; Creek says it mailed a letter offering to purchase Wesson’s interest, but Defendants dispute receipt.
- Defendants produced affidavits and tax-assessor records showing continuous family ownership and tax payments (except 2014), and that they received inquiries about the property during Creek’s claimed possession.
- The trial court granted summary judgment for Creek, finding Creek terminated precarious possession by filing the affidavit and possessed as owner; Defendants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an affidavit of possession + acts of possession are "overt and unambiguous" notice to co-owners | Affidavit filing plus physical acts and a mailed letter constituted sufficient notice; actual certified mail not required | Affidavit alone is not a translative instrument; Creek knew co-owner address and failed to provide reliable actual notice (no certified mail, receipt disputed) | Reversed: genuine issues of material fact exist about whether Creek’s actions were overt and unambiguous; affidavit alone insufficient as a matter of law |
| Whether actual notice is required when co-owner contact information is known | Actual notice not always required between co-owners; recorded instrument + acts can suffice | When address is known, more concrete notice (e.g., certified mail) is required; Creek admitted knowing Wesson’s address | Held that when co-owner address is known, whether notice was adequate is a factual question — summary judgment inappropriate |
| Whether an affidavit of possession functions like a recorded translative instrument | Creek contends the affidavit served as public notice analogous to recorded title instruments | Defendants: affidavit is not a deed or partition; case law emphasizes transmitted title documents, not affidavits | Court: affidavit is not equivalent to a translative instrument; insufficient undisputed evidence to treat it as such |
| Whether summary judgment was appropriate | Creek argued no material facts in dispute and entitlement as a matter of law | Defendants produced conflicting affidavits and documents disputing receipt of notice and knowledge of possession | Court: de novo review finds genuine disputes of material fact; reversed and remanded |
Key Cases Cited
- Bank of New York Mellon v. Smith, 180 So.3d 1238 (La. 2015) (standard of review and summary judgment criteria)
- Cockerham v. Cockerham, 16 So.3d 1264 (La. App. 2 Cir. 2009) (invalid deed alone does not necessarily give notice; acts of possession must align)
- Givens v. Givens, 273 So.2d 863 (La. App. 2 Cir. 1973) (recorded instrument plus acts may constitute notice; actual notice not always required)
- Arnold v. Sun Oil Co., 48 So.2d 369 (La. 1950) (general rule that one co-owner’s possession is presumed for all co-owners)
- Succession of Seals, 150 So.2d 13 (La. 1963) (recorded instruments among family members can support notice when coupled with other acts)