Mary Fitzpatrick Pollard, Independent of the Succession of Otis Miles Pollard, Jr. v. Kenneth M. Guidry ( 2022 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
ow NUMBER 2021 CA 1001
MARY FITZPATRICK POLLARD, INDEPENDENT EXECUTOR OF THE
SUCCESSION OF OTIS MILES POLLARD, JR.
VERSUS
wh
KENNETH M. GUIDRY
Judgment Rendered: ‘JUjN 0 3 2022
Appealed from the
Nineteenth Judicial District Court
in and for the Parish of East Baton Rouge
State of Louisiana
Docket Number C684311
Honorable William Morvant, Judge Presiding
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Ernest A. Burguieres, III Counsel for Plaintiff/Appellant.
New Orleans, LA Mary Fitzpatrick Pollard, Independent
Executor of the Succession of Otis Miles
Pollard, Jr.
Jean-Paul Layrisson Counsel for Defendant/Appellee,
Krista D. Eleew Kenneth M. Guidry
Timothy D. Scandurro
New Orleans, LA
BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ.
WHIPPLE, C.J.
In this matter involving a conversion claim by plaintiff seeking the return of
one Porsche and damages related to the sale of another Porsche, both allegedly
owned by plaintiff's deceased husband, and attorney fees, expert fees, and costs,
and a reconventional demand by defendant for declaratory judgment relief or,
alternatively, damages, storage fees, and attorney fees, plaintiff appeals the trial
court’s judgment denying her motion for partial summary judgment, granting
defendant’s motion for summary judgment, rendering declaratory judgment relief
in favor of defendant, and dismissing plaintiff's claims with prejudice. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
In approximately 1981 or 1982, Otis Miles Pollard, Jr. brought two
Porsches, a 1963 Porsche 356B coupe, VIN 124046 (“the black Porsche’), and a
1965 Porsche 356C, VIN 161151 (“the green Porsche”), to Kenneth Guidry, who,
at the time, operated a Porsche repair shop on property he owned on Staring Lane
in Baton Rouge, Louisiana, for repair work. At that time, neither car was running
or drivable. Mr. Pollard told Mr. Guidry what work he wanted performed, which
Mr. Guidry completed in the early 1980s and for which Mr. Pollard paid him.
Specifically, Mr. Guidry removed and cleaned the gas tank and rebuilt the
carburetors to get the black Porsche to a drivable state, but did not perform any
further work on that car. He also removed the engine from the green Porsche,
which was full of water. While Mr. Pollard and Mr. Guidry talked about other
work on the cars, Mr. Pollard never authorized any further work. Mr. Pollard did
not retrieve the cars after Mr. Guidry completed the work Mr Pollard had
authorized, and the cars remained at Mr. Guidry’s repair shop for an extended
period of time. Other than these two Porsches, Mr. Guidry did not store any other
cars at his repair shop.
Around 1990, Mr. Guidry ceased performing repair work on cars and closed
his repair shop to pursue other business endeavors, but the two Porsches remained
at his shop on Staring Lane. Thereafter, in 1998, because Mr. Guidry was starting
another, unrelated, business in his building on Staring Lane that had previously
housed the repair shop, he contacted Mr. Pollard about removing the cars from his
shop. However, Mr. Pollard did not retrieve either car and did not return to the
shop during the next sixteen years. In September 2014, after the passage of
another sixteen years with the cars remaining at his shop, Mr. Guidry successfully
applied with the State of Louisiana to have the two Porsches titled in his name.!
After applying for and receiving title, Mr. Guidry began restoration work on the
green Porsche and sold the black Porsche to a third party in October 2015.
Following Mr. Pollard’s death in September 2018, his son Steele Pollard
visited Mr. Guidry’s business on Staring Lane to inquire about the two Porsches
and learned that the cars had been titled in Mr. Guidry’s name. This lawsuit
ensued.
On June 17, 2019, Mary Fitzpatrick Pollard, the independent executor of the
Succession of Mr. Pollard, filed suit against Mr. Guidry, alleging that Mr. Guidry
had improperly converted the two Porsches belonging to Mr. Pollard for his
personal use and seeking return of the green Porsche, damages, costs, and
attorney’s fees.
Mr. Guidry reconvened, contending that the cars had been abandoned and
seeking a declaratory judgment declaring that he was in rightful possession of the
green Porsche, that he owed no sale proceeds from the sale of the black Porsche,
and that he did not owe any damages as alleged by Mrs. Pollard. Alternatively,
' According to Mr. Guidry, Mr. Pollard did return to his shop in December 2015, after Mr.
Guidry had already obtained title to the cars. However, because Mr. Guidry was engaged in
work related to his new business, he asked Mr. Pollard to return the next day. Although Mr.
Pollard agreed to return the next day, he in fact never returned. The purpose of Mr. Pollard’s
Visit is unknown.
Mr. Guidry contended that in the event the court found that Mrs. Pollard was
entitled to the Porsches and/or damages, he was entitled to set-off and payment in
the amount of $138,000.00 for thirty-two years of storage of the cars, 600 hours of
skilled labor, and money spent to repair and restore the cars. Mr. Guidry further
contended in the alternative that in the event the court found that Mrs. Pollard was
entitled to the Porsches, Mr. Guidry was entitled to all fees for restoration work,
skilled mechanical labor, storage fees, and attorney fees.
Thereafter, Mrs. Pollard filed a Motion for Partial Summary Judgment,
contending that Mr. Pollard owned the two Porsches and that Guidry had “illegally
obtained title to the cars.” Thus, she sought summary judgment in her favor
finding Mr. Guidry liable for tortious conversion and breach of his duties as a
compensated depositary, ordering Mr. Guidry to return the green Porsche to the
estate of Mr. Pollard, and ordering Mr. Guidry to refund the sales price of the black
Porsche to Mr. Pollard’s estate. Additionally, Mrs. Pollard sought dismissal of
Mr. Guidry’s reconventional demand, contending that a defendant in a tortious
conversion case cannot assert compensation, setoff, or comparative negligence
against the plaintiff.
Mr. Guidry opposed the motion, averring, in part, that: Mrs. Pollard had
presented no evidence of Mr. Pollard’s ownership of the cars, an essential element
of her conversion claim; any depositary relationship that may have existed had
long since terminated; Mr. Pollard had abandoned the cars; and Mr. Guidry had
thereafter acquired ownership.
Mr. Guidry also filed a Motion for Summary Judgment, seeking dismissal of
Mrs. Pollard’s claims against him and further seeking declaratory judgment in his
favor, declaring that he was the owner of the two cars. In support of his motion,
Mrs. Pollard sought to have any additional damages and costs determined at a later date.
4
Mr. Guidry contended that there was no documentation or evidence of Mr. Pollard
acquiring the vehicles, registering or titling the vehicles, or insuring them, and how
Mr. Pollard came to possess the black Porsche and the green Porsche was unclear.
Mr. Guidry further contended that Mr. Pollard had abandoned the cars, thus giving
up any right to own or possess them, and that Mr. Guidry had acquired ownership
of the cars by acquisitive prescription. Additionally, Mr. Guidry asserted that prior
to Mr. Pollard’s abandonment of the black Porsche, it was given to Mr. Guidry.
Thus, he sought dismissal of Mrs. Pollard’s claims against him and judgment in his
favor, declaring him to be the rightful owner of the Porsches.?
Mrs. Pollard opposed Mr. Guidry’s motion, arguing that Mr. Guidry was a
compensated depositary and, thus, a precarious possessor of the cars, in whose
favor acquisitive prescription does not run. She contended that because Mr.
Guidry never gave Mr. Pollard actual notice of his intent to possess the cars for
himself, his precarious possession never terminated and he never acquired
ownership of the cars through acquisitive prescription.
Following a hearing on the motions, the trial court, in oral reasons, noted
that, with regard to Mrs. Pollard’s Motion for Partial Summary Judgment, “there is
absolutely nothing to establish any proof of ownership on the part of Mr. Pollard
which is an absolute necessary element for [a] conversion claim.” Thus, the court
concluded that Mrs. Pollard had not established her entitlement to summary
*While the declaratory relief sought by Mr. Guidry in his reconventional demand
included requests for a declaration that he did not owe any sales proceeds from the sale of the
black Porsche (which he had sold prior to this suit being filed) or damages to Mrs. Pollard and
that he was in rightful possession of the green Porsche, it did not include the request for a
declaration that he was the rightful owner of the Porsches. Nonetheless, he clearly placed this
requested relief at issue as to both cars in his Motion for Summary Judgment pleading, despite
having previously sold the black Porsche. Mrs. Pollard neither objected to the expansion of the
pleadings in the trial court below nor complained on appeal. Thus, the pleadings were expanded
when evidence was presented on that issue without objection, and the issue of Mr. Guidry’s
ownership of the cars “shall be treated in all respects as if [it] had been raised by the pleading.”
See LSA-C.C.P. art. 1154; Carraway v. Carraway, 2020-1309 (La. App. 1% Cir. 7/29/21)
(unpublished), 2021 WL 3205383, *4 n.6, writ denied, 2021-01764 (La. 1/19/22), 331 So. 3d
325.
judgment in her favor. Regarding Mr. Guidry’s Motion for Summary Judgment,
the court further concluded that if Mr. Pollard did own the vehicles, which was not
established by the record, he clearly abandoned the vehicles at the latest in 1998,
when he was asked to come and get the vehicles and he did not do so. The court
further concluded that when Mr. Guidry applied for title to the cars in 2014, he
began to possess as owner and acquired ownership after three years. Thus, the
court concluded that Mr. Guidry had established his entitlement to summary
judgment in his favor, dismissing Mrs. Pollard’s claims against him and granting
declaratory judgment in his favor.
Thereafter, the trial court signed a judgment on May 20, 2021, denying Mrs.
Pollard’s Motion for Partial Summary Judgment, granting Mr. Guidry’s Motion for
Summary Judgment, dismissing Mrs. Pollard’s claims against Mr. Guidry with
prejudice; declaring that Mr. Guidry is the rightful owner of the 1965 green
Porsche 356C Cabriolet VIN 161151, and declaring that Mr. Guidry owed Mrs.
Pollard nothing for the sale of the 1963 black Porsche 356 coupe VIN 124046 sold
by Mr. Guidry in 2015.
From this judgment, Mrs. Pollard appeals, contending that the trial court
erred as a matter of law in: (1) granting Mr. Guidry’s Motion for Summary
Judgment based on a patently incorrect analysis of Louisiana property law; (2)
declaring Mr. Guidry the owner of the green Porsche; and (3) finding Mr. Guidry
owed Mrs. Pollard nothing for the sale of the black Porsche.
SUMMARY JUDGMENT PRECEPTS
A motion for summary judgment is a procedural device used to avoid a full-
scale trial when there is no genuine issue of material fact. Jones v. Anderson,
2016-1361 (La. App. 1 Cir. 6/29/17), 224 So. 3d 413, 417. After an opportunity
for adequate discovery, a motion for summary judgment shall be granted if the
motion, memorandum, and supporting documents show that there is no genuine
issue as to material fact and that the mover is entitled to judgment as a matter of
law.* LSA-C.C.P. art. 966(A)(3).
The initial burden of proof is on the mover. LSA-C.C.P. art. 966(D)(1).
When the mover will bear the burden of proof at trial, the burden of showing that
there is no genuine issue of material fact and that mover is entitled to judgment in
its favor remains with the mover. Only when the mover makes this showing does
the burden shift to the opposing party to present evidence demonstrating a material
“The trial court, and this court on de novo review, may only consider evidence that is
admissible under the express provisions of LSA-C.C.P. arts. 966 and 967. Huggins v. Amtrust
Insurance Company of Kansas, Inc., 2020-0516 (La. App.1* Cir. 12/30/20), 319 So. 3d 362, 366.
As such, we may consider only those documents filed in support of or in opposition to the motion
for summary judgment and shall consider any documents to which no objection is made. LSA-
C.C.P. art. 966(D)(2) (emphasis added).
In the instant case, in her opposition to Mr. Guidry’s Motion for Summary Judgment,
Mrs. Pollard referred to, but did not file, Mr. Guidry’s deposition, which she referred to as
Exhibit 2 (numbering corresponding to her exhibits filed in support of her own Motion for Partial
Summary Judgment), and her own deposition, which was filed by Mr. Guidry in support of his
Motion for Summary Judgment.
Similarly, in Mr. Guidry’s reply memorandum in support of his Motion for Summary
Judgment, Mr. Guidry stated that he “adopt[ed] by reference and incorporate[d] herein the facts,
arguments, legal authorities, and exhibits presented in and with” his opposition to Mrs. Pollard’s
Motion for Partial Summary Judgment and “the Response to Statement of Uncontested Facts and
Statement of Contested Facts, and the attached exhibits, all filed on April 29, 2021.”
(Emphasis added).
Recognizing the potential procedural issue, the trial court, at the hearing on the motions,
stated that it was considering the motions as cross-motions for summary judgment and would
consider whatever evidence was filed with one party’s motion as part of that party’s opposition
to the other party’s motion.
Under prior summary judgment law, in a case where cross motions for summary
judgment were filed, the trial court was able to consider each party’s motion as an opposition to
the other party’s motion and to consider all evidence offered on the cross motions. Huggins, 319
So. 3d at 367. However, under current LSA-C.C.P. art. 966(D)(2), in reviewing the grant of
summary judgment, we may consider only those documents specifically filed in support of or in
opposition to that motion for summary judgment. See Huggins, 319 So. 3d at 367.
Thus, while we would not be able to consider evidence filed in support of Mrs. Pollard’s
Motion for Partial Summary Judgment as evidence supporting her opposition to Mr. Guidry’s
Motion for Summary Judgment, we note that both exhibits to which she refers in Opposition to
Mr. Guidry’s motion (the depositions of the parties) were in fact filed by Mr. Guidry in support
of his motion. Thus, we may consider those depositions in reviewing the grant of Mr. Guidry’s
Motion for Summary Judgment.
Regarding Mr. Guidry’s reference in his reply memorandum in support of his own
motion to exhibits filed in opposition to Mrs. Pollard’s motion, a review of the record indicates
that Mr. Guidry had previously filed in support of his motion all but one of the exhibits he
attempted to adopt by reference in his reply memorandum in support of his motion.
Accordingly, while most of the exhibits relied upon by Mr. Guidry in support of his motion may
be considered by this court, we may not consider any exhibit filed solely in opposition to Mrs.
Pollard’s motion and merely referenced in support of Mr. Guidry’s motion, such as Mr. Guidry’s
Exhibit K in opposition to Mrs. Pollard’s motion, an unsigned Notice of Records Deposition
addressed to Mr. Guidry, purporting to give notice that Mrs. Pollard would be taking the records
depositions of the State of Louisiana, Department of Public Safety, Office of Motor Vehicles and
the State of California Department of Motor Vehicles.
factual issue remains or that mover is not entitled to judgment as a matter of law.
See Action Oilfield Services, Inc. v. Energy Management Company, 2018-1146
(La. App. 1* Cir. 4/17/19), 276 So. 3d 538, 541-542.
Nevertheless, if the mover will not bear the burden of proof at trial on the
issue that is before the court on the motion for summary judgment, the mover’s
burden on the motion does not require him to negate all essential elements of the
adverse party’s claim, action, or defense, but rather to point out to the court the
absence of factual support for one or more elements essential to the adverse party’s
claim, action, or defense. The burden is then on the adverse party to produce
factual support sufficient to establish the existence of a genuine issue of material
fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P.
art. 966(D)(1).
Appellate courts review summary judgments de novo, using the same
standards applicable to the trial court’s determination of the issues, and ask the
same questions the trial court does in determining whether summary judgment is
appropriate. Cabana Partners, LLC v. Citizens Bank & Trust Co., 2018-0133 (La.
App. 1* Cir. 12/21/18), 269 So. 3d 986, 990. See also LSA-C.C.P. art. 966(A)(3).
DISCUSSION
As set forth above, Mrs. Pollard asserted claims of conversion and breach of
duties as a compensated depositary against Mr. Guidry. In support of his Motion
for Summary Judgment seeking dismissal of Mrs. Pollard’s claims against him and
declaratory judgment in his favor, Mr. Guidry argued that Mr. Pollard’s ownership
of the cars had not been established; that Mr. Pollard had abandoned the cars, thus
giving up any right to own or possess them; and that Mr. Guidry had thereafter
acquired them by acquisitive prescription.
Through her assignments of error on appeal, Mrs. Pollard challenges the trial
court’s grant of Mr. Guidry’s Motion for Summary Judgment, dismissing her
claims against him, declaring him the owner of the green Porsche, and declaring
that he owed Mrs. Pollard nothing for the sale of the black Porsche. Mrs. Pollard
first contends that even if the record is void of titles to the cars in Mr. Pollard’s
name, by operation of law, he acquired the cars by possession as owner for over
ten years, and, accordingly, the trial court erred in finding no evidence of his
ownership of the cars. She further contends that Mr. Guidry bore the burden of
proving that he acquired ownership of the two cars through either acquisitive
prescription of three years with good faith and just title, see LSA-C.C. art. 3490, or
through acquisitive prescription of ten years without good faith or just title, see
LSA-C.C. art. 3491, and that to do so, he had to prove that he possessed the cars as
owner to commence the running of acquisitive prescription. Mrs. Pollard asserts
that Mr. Guidry’s possession of the cars commenced as a compensated depositary
on behalf of Mr. Pollard and, thus, was precarious and that his precarious
possession of the cars never terminated. Accordingly, she contends that the trial
court erred in declaring that Mr. Guidry was the owner of the green Porsche and
that he owed Mrs. Pollard nothing for the sale of the black Porsche.
I. Mr. Pollard’s Ownership of the Cars
Addressing first Mrs. Pollard’s contention that the trial court erred in finding
no evidence of Mr. Pollard’s ownership of the cars where he had acquired
ownership by ten years of possession as owner, we note that Mrs. Pollard did not
raise in the trial court below the issue of Mr. Pollard’s ownership of the cars by
acquisitive prescription either in support of her own Motion for Partial Summary
Judgment or in opposition to Mr. Guidry’s Motion for Summary Judgment.
Indeed, she offered no argument or evidence of Mr. Pollard’s ownership of the cars
by any means in relation to either motion. In deciding a motion for summary
judgment, a court can consider only those issues raised in the motion or opposition
filed by the parties. LSA-C.C.P. art. 966(F) & 2015 Official Revision
Comments—2015, comment (1). The court cannot rule on issues not raised by the
parties. Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 2018-
0254 (La. App. 1% Cir. 12/12/19), 293 So. 3d 1157, 1160, writ denied, 2020-00334
(La. 6/22/20), 297 So. 3d 762; see also Simon v. CenturyLink, Inc., 2021-0412
(La. App. 1% Cir. 12/22/21), So. 3d i, __, 2021 WL 6065886, *3, n.2.
Thus, the issue of Mr. Pollard’s ownership of the cars by virtue of acquisitive
prescription is not properly before us.
We further note that in denying Mrs. Pollard’s Motion for Partial Summary
Judgment, the trial court, in oral reasons for judgment, found that Mrs. Pollard had
not carried her burden of proof in support of her conversion claim and that a
genuine issue of material fact remained, because she had presented absolutely no
evidence to establish Mr. Pollard’s ownership of the cars, an essential element of a
claim of conversion. See Duet v. Landry, 2017-0937 (La. App. 1% Cir. 4/30/ 18),
250 So. 3d 918, 922 (a conversion claim does not exist where the plaintiffs did not
have an ownership interest in the thing allegedly converted). Further, a review of
Mrs. Pollard’s appellate brief and her assignments of error indicates that she is
appealing the portion of the trial court’s judgment granting Mr. Guidry’s Motion
for Summary Judgment and not that portion of the trial court’s judgment denying
her Motion for Partial Summary Judgment. Nonetheless, to the extent that Mrs.
Pollard’s brief and arguments could be viewed as seeking review of the denial of
her motion, on de novo review, we find no error in the trial court’s conclusion that
Mrs. Pollard failed to establish an essential element of her claim, i.e., Mr. Pollard’s
ownership of the cars.
“In opposition to Mrs. Pollard’s motion (as well as in support of his own), Mr. Guidry
filed the deposition of Mrs. Pollard, in which she testified that she could not find any
documentation as to Mr. Pollard’s ownership of either car and that, while she thought he
acquired the cars in the early 1980s, she did not know how Mr. Pollard had acquired the cars.
Mrs. Pollard further testified that neither car was mentioned in Mr. Pollard’s will. Mr. Guidry
also filed Mrs. Pollard’s answers to Mr. Guidry’s discovery requests, in which she acknowledged
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Il. Abandonment, Precarious Possession as Depositary, and Mr. Guidry’s
Ownership by Acquistive Prescription
In addition to his contention that there was a lack of any evidence
establishing Mr. Pollard’s ownership of the cars, Mr. Guidry sought summary
judgment in his favor, dismissing Mrs. Pollard’s claims against him and granting
declaratory judgment, on the basis that Mr. Pollard had abandoned whatever
interest he had in the cars, whether ownership or possessory, and that Mr. Guidry
had thereafter obtained ownership thereof. In granting Mr. Guidry’s motion, the
trial court found: that if Mr. Pollard did own the cars, he had clearly abandoned
them; that Mr. Guidry had begun to possess the cars as owner in 2014 when he
applied for title to the cars; and that Mr. Guidry had thereafter acquired title to the
abandoned cars and ownership through acquisitive prescription.
On appeal, Mrs. Pollard contends that the trial court erred in finding that Mr.
Guidry ever possessed the cars as owner, a necessary finding for acquisitive
prescription. She contends that Mr. Guidry bore the burden of proving that he
acquired ownership of the two cars through either acquisitive prescription of three
years with good faith and just title, see LSA-C.C. art. 3490, or through acquisitive
prescription of ten years without good faith or just title, see LSA-C.C. art. 3491,
and that to do so, he had to prove that he possessed the cars as owner for the
requisite number of years so as to commence the running of acquisitive
prescription.
that she had been unable to locate any titles, registration, insurance, sale documents, or invoices
relating to either the black Porsche or the green Porsche.
In further opposition to Mrs. Pollard’s motion, Mr. Guidry filed the deposition of
Lieutenant Jared Sandifer with the Louisiana State Police, who performed a physical inspection
of the cars and checked the VINs through the NCIC (“National Criminal Information Center”)
database, in connection with Mr. Guidry’s application for title to the cars. Based on his
investigation, he determined that the cars were not stolen and were not registered to anyone. Mr.
Guidry also filed the deposition of Lauren Debatz, the designated representative of the State of
Louisiana, Department of Public Safety, Office of Motor Vehicles, who testified that there was
nothing in the Office of Motor Vehicle files indicating that Mr. Pollard was owner of the cars
and that if a vehicle is titled to an individual, that information would show up in the NCIC
database.
11
Contrariwise, Mrs. Pollard asserts that Mr. Guidry’s possession of the cars
commenced on behalf of Mr. Pollard as a deposit relationship and, thus, was
precarious and that his precarious possession of the cars never terminated.
Accordingly, because acquisitive prescription can never run in favor of a
precarious possessor, LSA-C.C. art. 3477, Mrs. Pollard contends that the trial court
erred in dismissing her claims against Mr. Guidry, declaring Mr. Guidry the owner
of the green Porsche, and further declaring that he owed Mrs. Pollard nothing for
the sale of the black Porsche.
The ownership and possession of a thing are distinct. LSA-C.C. art. 481
(emphasis added). Ownership is the right that confers on a person direct,
immediate, and exclusive authority over a thing. The owner of a thing may use,
enjoy, and dispose of it within the limits and under the conditions established by
law. LSA-C.C. art. 477. Possession, on the other hand, is the detention or
enjoyment of a corporeal thing, movable or immovable, that one holds or exercises
by himself or by another who keeps or exercises it in his name. LSA-C.C. art.
3421.
Regarding abandonment of a thing by an owner, abandoned movables are
subject to the law of occupancy. LSA-C.C. art. 3418, Revision Comments—1982,
comment (b). An owner abandons a thing when he relinquishes possession with
the intent to give up ownership. LSA-C.C. art. 3418. The determination of intent
to give up ownership is based upon objective criteria. LSA-C.C. art. 3418,
Revision Comments—1982, comment (c). One who takes possession of an
abandoned thing with the intent to own it acquires ownership by occupancy. LSA-
C.C. art. 3418. Occupancy is the taking of possession of a corporeal movable that
does not belong to anyone. The occupant acquires ownership the moment he takes
possession. LSA-C.C. art. 3412.
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Moreover, as to abandonment by a possessor, possession is lost when the
possessor manifests his intention to abandon a thing. LSA-C.C. art. 3433. Similar
to intent by an owner to abandon a thing, the intent to abandon possession of a
thing may be established in the light of objective criteria. LSA-C.C. art. 3433,
Revision Comments—1982, comment (c).
Acquisitive prescription, on the other hand, is a mode of acquiring
ownership or other real rights by possession for a period of time. LSA-C.C. art.
3446 (emphasis added). To acquire possession, one must intend to possess as
owner and must take corporeal possession of the thing. LSA-C.C. art. 3424.
Ownership and other real rights in movables may be acquired either by the
prescription of three years or by the prescription of ten years. LSA-C.C. art. 3489.
One who has possessed a movable as owner, in good faith, under an act sufficient
to transfer ownership, and without interruption for three years, acquires ownership
by prescription. LSA-C.C. art. 3490. As to movables, the requirement of a “just
title” is easily satisfied. There is no requirement that the title be written or
recorded. LSA-C.C. art. 3490, Revision Comments—1982, comment (b).
Additionally, one who has possessed a movable as owner for ten years acquires
ownership by prescription. Neither title nor good faith is required for this
prescription. LSA-C.C. art. 3491.
One is presumed to intend to possess as owner unless he began to possess in
the name of and for another. LSA-C.C. art. 3427. The exercise of possession over
a thing with the permission of or on behalf of the owner or possessor is precarious
possession. LSA-C.C. art. 3437. A precarious possessor, such as a lessee or a
depositary, is presumed to possess for another although he may intend to possess
for himself. LSA-C.C. art. 3438. However, except in the case of a co-owner, a
precarious possessor commences to possess for himself when he gives actual
notice of this intent to the person on whose behalf he is possessing. LSA-C.C. art.
13
3439. Acquisitive prescription cannot run in favor of a precarious possessor. LSA-
C.C. art. 3477.
At the time of the alleged deposit relationship herein, a deposit was defined
as an act by which a person receives the property of another, binding himself to
preserve it and return it in kind.® La. C.C. art. 2926 of the Louisiana Civil Code of
1870, prior to amendment of Title XIII of Book III of the Civil Code by Acts 2003,
No. 491, effective 1/1/04. The relationship of an automobile repairman and
automobile owner has been characterized as a compensated voluntary deposit.
Hutchinson v. Aime, 392 So. 2d 143, 144 (La. App. 1° Cir. 1980).
Applying these precepts and turning to Mr. Guidry’s Motion for Summary
Judgment, we find on de novo review that the evidence presented by Mr. Guidry in
support of his motion for summary judgment established that any deposit
relationship between Mr. Pollard and Mr. Guidry had terminated at the latest in
1998 and, further, that Mr. Pollard had abandoned the cars, thus terminating any
rights he had thereto, as owner or as possessor.
Mr. Guidry’s deposition testimony filed in support of his motion established,
as set forth above, that Mr. Pollard brought the two cars to Mr. Guidry’s repair
shop in approximately 1981 or 1982 for repair work. However, after the
authorized repair work was completed by the mid-1980s and paid for, Mr. Pollard
did not retrieve the cars. Moreover, even when Mr. Guidry closed his Porsche
repair business in approximately 1990, Mr. Pollard still did not make any effort to
retrieve the cars.
Most importantly, according to Mr. Guidry’s testimony, Mr. Guidry
contacted Mr. Pollard in 1998 and specifically told him to remove the cars from his
*Prior to 2004, the law provided that a depositary was bound to use the same diligence in
preserving the thing deposited that he used in preserving his own property. La. C.C. art. 2937 of
the Louisiana Civil Code of 1870, prior to amendment of Title XIII of Book III of the Civil Code
by Acts 2003, No. 491, effective 1/1/04 (now see LSA-C.C. art. 2930).
14
Staring Lane property because Mr. Guidry needed the space for a new business
enterprise. Accordingly, based on the evidence presented by Mr. Guidry, we
conclude that Mr. Guidry produced factual support sufficient to find that any
deposit relationship between Mr. Pollard and Mr. Guidry ended at the very latest in
1998, when Mr. Pollard was told to remove the cars from Mr. Guidry’s premises.’
See Hutchinson, 392 So. 2d at 144-145 (As between an automobile repairman and
automobile owner, the return of the deposited automobile and the termination of
the deposit relationship occurred when the repairs were completed and the owner
paid for the repairs and attempted to drive the automobile away. The repairman’s
subsequent actions of allowing the immobilized automobile to remain on his
premises was nothing more than a business courtesy and did not prove that the
deposit relationship was re-established.).
Moreover, according to Mr. Guidry’s testimony, when he asked Mr. Pollard
to retrieve the cars in 1998, Mr. Pollard stated that he would transfer the black
Porsche to Mr. Guidry as compensation for Mr. Guidry’s storage of the two cars
since the 1980s and that he would return later that week with the title to the black
Porsche and to retrieve the green Porsche. However, despite being told at that time
to remove the cars from Mr. Guidry’s premises, Mr. Pollard did not return to Mr.
Guidry’s shop for the next sixteen years, at which point Mr. Guidry applied for
title to the cars with the State of Louisiana. While Mr. Pollard may have initially
manifested an intention to retrieve at least the green Porsche, for the next sixteen
years, Mr. Pollard took no action nor made any effort to retrieve the cars or
otherwise protect in any way whatever rights he may have had to the cars, despite
having access to various storage facilities of his own, as well as a trailer he could
"If the contract of deposit does not specify the place of return, the thing deposited is to be
returned at the place where the deposit was made. La. C.C. arts. 2953 & 2954 of the Louisiana
Civil Code of 1870, prior to amendment of Title XIII of Book III of Civil Code by Acts 2003,
No. 491, effective 1/1/04 (now see LSA-C.C. art. 2937).
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have used to move them. These facts clearly and objectively establish his ultimate
intention to abandon the cars. See Swain v. Hymel, 377 So. 2d 888, 888-889 (La.
App. 4" Cir. 1979) (where plaintiff, whose wrecked vehicle was towed to
defendant’s storage facility, made no effort to pay for the storage or to retrieve the
vehicle for six months and, after the vehicle was then towed to another facility
owned by defendant, made no inquiry as to where the vehicle was located,
plaintiff's actions constituted abandonment of the vehicle).
In opposition, Mrs. Pollard failed to establish the existence of a genuine
issue of material fact as to the termination of any deposit relationship or of Mr.
Pollard’s abandonment of the cars.’ Moreover, although Mrs. Pollard contends on
appeal that Mr. Guidry’s testimony as to the 1998 exchange between himself and
Mr. Pollard was self-serving testimony and therefore insufficient to warrant
summary judgment, we note that a court ruling on a motion for summary judgment
must assume that all witnesses are credible. The Shaw Group v. Kulick, 2004-
0697 (La. App. 1° Cir. 4/8/05), 915 So. 2d 796, 801. The exception to this general
rule occurs where the mover’s testimony absolving himself from liability contains
substantive contradictions or discrepancies that would ordinarily call his credibility
into doubt if presented to a fact-finder. Charles v. Travelers Indemnity Company,
2015-0956, 2015-0957 (La. App. 1 Cir. 5/10/16) (unpublished), 2016 WL
2669821, *8 (citing Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So. 2d 764,
768-769). However, there were no such discrepancies in Mr. Guidry’s testimony.
Consequently, we find no merit to this argument. See Charles, 2016 WL 2669821at *8.
As mentioned above, while Mr. Pollard did briefly visit Mr. Guidry’s shop in December
2015, after Mr. Guidry had been issued title to the cars, the record does not establish Mr.
Pollard’s purpose for appearing at the shop at that time. Moreover, while he agreed to return the
next day, he in fact never returned to Mr. Guidry’s shop in the following years before his death
in 2018. Thus, this brief appearance without the promised follow-up does not demonstrate that
an issue of fact as to Mr. Pollard’s abandonment of the cars remains.
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As such, on de novo review, we conclude that Mr. Guidry demonstrated
facts sufficient to establish both the termination of any deposit relationship and Mr.
Pollard’s abandonment of the cars, and Mrs. Pollard failed to come forward with
evidence to demonstrate an issue of material fact. Upon Mr. Pollard’s
abandonment of the cars, he relinquished any ownership or possession rights he
had thereto. See LSA-C.C. arts. 3418 & 3433. Because abandonment is the
relinquishment of rights in a movable, Mr. Pollard’s abandonment of the cars
precluded Mrs. Pollard from asserting any claims relating to ownership or
possession on his behalf or on behalf of his succession. As such, we find no error
in the trial court’s dismissal of Mrs. Pollard’s claims against Mr. Guidry for
conversion or any alleged breach of his duties as a depositary of the cars.
Moreover, in light of Mr. Guidry’s testimony and Mr. Pollard’s abandonment of
the cars, we likewise find no error in the trial court’s grant of declaratory judgment
declaring that Mr. Guidry owed Mrs. Pollard nothing for the subsequent sale of the
black Porsche.
Additionally, we reject as meritless Mrs. Pollard’s contention on appeal that
the trial court erred in declaring Mr. Guidry the owner of the green Porsche on the
basis that Mr. Guidry’s possession of the car was always precarious such that
acquisitive prescription could not run in his favor. As noted above, upon the
termination of any deposit relationship and Mr. Pollard’s abandonment of the cars,
Mr. Guidry’s possession of the cars ceased to be possession on behalf of Mr.
Pollard, i.e. precarious possession, thus no longer preventing him from possessing
as owner on his own behalf.
As to Mr. Guidry’s ownership of the green Porsche, the evidence in support
of Mr. Guidry’s Motion for Summary Judgment further established Mr. Guidry’s
intent to possess the cars as owner, so as to commence the running of acquisitive
prescription, when he applied for title to the cars in September 2014, in accordance
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with LSA-R.S. 32:707(M),’ following Mr. Pollard’s abandonment of the cars as
objectively established by his inaction for a period of sixteen years after being told
to remove them from Mr. Guidry’s premises. While title to a vehicle constitutes
only prima facie proof of ownership and is not conclusive proof of same, Lambert
v. Ray Brandt Dodge, Inc., 09-739 (La. App. 5" Cir. 1/26/10), 31 So. 3d 1108,
1112, writ denied, 2010-0430 (La. 4/30/10), 34 So. 3d 293; Ford Motor Credit
Company v Soileau, 323 So. 2d 221, 223 (La. App. 3"! Cir. 1975), the evidence
that Mr. Guidry applied for title to the cars pursuant to this statute in September
2014 established his intent to possess the cars as owner at that time. See LSA-
C.C. arts. 3412 & Revision Comments—1982, comment (b); LSA-C.C. art. 3424.
Mr. Guidry’s testimony established that when he applied for title to the cars
in September 2014, the State issued him temporary titles. Moreover, while Mr.
Guidry’s certificates of title to the cars were not filed in support of his motion, the
evidence that was submitted established that at the expiration of the one-year
period, during which no one made an ownership claim to the cars, Mr. Guidry
received title in September 2015. Moreover, Mr. Guidry continued to possess the
green Porsche as owner in good faith, under an act sufficient to transfer ownership,
without interruption until the time Mrs. Pollard filed this suit in June 2019, i.e., for
a period in excess of three years. As such, Mr. Guidry produced factual support
*Pursuant to LSA-RS. 32:707(M)(1), the Office of Motor Vehicles shall issue a
certificate of title to an eligible applicant in good-faith possession of a vehicle provided that: (1)
the vehicle is twenty-five years old or older; (2) the vehicle has not had its registration renewed
in this state or any other state for a period of three years immediately prior to the application for
the title; (3) the applicant has submitted a sworn affidavit or affidavits of two people attesting on
their own personal knowledge that the vehicle has been abandoned for three or more years; and
(4) the applicant has provided the Office of Motor Vehicles a statement from the State Police
auto theft division confirming that based upon a check by photo or rub of a vehicle body
identification plate, the vehicle is not listed as stolen. If at the end of one year after the
application has been submitted, no one has proven ownership of the vehicle, the applicant shall
be issued a certificate of title. LSA-R.S. 32:707(M)(2).
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sufficient to find that he had acquired the green Porsche by three years acquisitive
prescription pursuant to LSA-C.C. art. 3490.!°
In opposition, Mrs. Pollard failed to demonstrate the existence of a genuine
issue of material fact as to Mr. Guidry’s ownership of the green Porsche by
acquisitive prescription following Mr. Pollard’s clear abandonment of the cars, Mr.
Guidry’s successful application for title to the cars, and his subsequent
uninterrupted possession of the green Porsche as owner for three years.
Accordingly, on de novo review, we likewise find no merit to Mrs. Pollard’s
argument that the trial court erred in rendering judgment in favor of Mr. Guidry
declaring him to be the owner of the green Porsche.!!
CONCLUSION
For the above and foregoing reasons, the trial court’s May 20, 2021
judgment, denying Mrs. Pollard’s Motion for Partial Summary Judgment, granting
Mr. Guidry’s Motion for Summary Judgment, dismissing Mrs. Pollard’s claims
against Mr. Guidry with prejudice, declaring Mr. Guidry to be the owner of the
1965 Porsche 356C, VIN 161151, and further declaring that Mr. Guidry owes Mrs.
Pollard nothing for the sale of the 1963 Porsche 356B coupe, VIN 124046, is
hereby affirmed. Costs of this appeal are assessed against Mrs. Mary Fitzpatrick
Pollard, as independent executor of the Succession of Otis Miles Pollard, Jr.
AFFIRMED.
‘Notably, because Mr. Pollard’s ownership of the cars was not established on summary
judgment, the law of occupancy cannot apply to establish Mr. Guidry’s ownership of the cars.
See LSA-C.C. arts. 3412, 3418.
''Because Mr. Guidry had sold the black Porsche prior to the filing of this suit, the trial
court’s failure to render judgment declaring him to be the owner of that car was proper.
Nonetheless, the dismissal of Mrs. Pollard’s claims against Mr. Guidry together with the
declaration that he owned the green Porsche and owed her nothing for the sale of the black
Porsche fully resolved the claims between these parties.
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