Janice Dickerson v. Axiall Corporation, Axiall, LLC, and Plant Security, Inc. ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
pN? .
Ga i£' 2019 CA 0813
JANICE DICKERSON
VERSUS
AXIALL CORPORATION, AXIALL, LLC, AND
PLANT SECURITY, INC.
Judgment Rendered: JUL 0 8 2020
On Appeal from the Eighteenth Judicial District Court
In and for the Parish of Iberville
State of Louisiana
Docket No. 77391
Honorable J. Kevin Kimball, Judge Presiding
Christopher A. Meeks Counsel for Plaintiff/Appellant
Mandeville, Louisiana Janice Dickerson
F. Charles Marionneaux Counsel for Defendants/ Appellees
David M. Bienvenu, Jr. Axial[, LLC and the Improperly Named
John Allain Viator Axiall Corporation
Anthony J. Lascaro
Baton Rouge, Louisiana
F. Barry Marionneaux Counsel for Defendant/ Appellee
Amanda M. Hebert Plant Security, Inc.
Plaquemine, Louisiana
BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.
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McCLENDON, J.
Plaintiff, Ms. Janice Dickerson, appeals a judgment sustaining an exception
raising the peremptory objection of prescription and dismissing her possessory action.
For the reasons that follow, we reverse the judgment and remand this matter to the
trial court for proceedings consistent with our opinion rendered herein.
FACTUAL AND PROCEDURAL HISTORY
In 1881, a tract of land in Iberville Parish was purchased by an unincorporated
association known as the Mount Zion Baptist Association (" MZBA") to serve as a
cemetery for former slaves in the Revilletown community (" Revilletown Cemetery" or
the cemetery"). In the late 1960s and early 1970s, a chemical production facility, now
owned by Axiall, LLC (" Axiall"), was built on land surrounding the cemetery. Prior to
1988, Axiall' s predecessor removed a barbed wire fence that had been erected around
the perimeter of the cemetery by members of the Revilletown community, and replaced
it with a chain link fence (" cemetery fence'. A second gate and fence were erected
around the perimeter of the chemical production facility following the September 11,
2001 terrorist attacks (" perimeter fence"). The present appeal arises from the third
lawsuit Ms. Dickerson has been involved in regarding Revilletown Cemetery.
Dickerson I
The first lawsuit Ms. Dickerson was involved with regarding Revilletown
Cemetery (" Dickerson I") was originally brought by MZBA Inc., a non- profit corporation
MZBA Inc.") incorporated on March 3, 2009, for the purpose of maintaining
Revilletown Cemetery. On October 8, 2012, MZBA Inc. filed suit against Mt. Zion Baptist
Church # 1 of Revilletown Park (" the Church") alleging that the Church was making
unauthorized sales of cemetery burial plots (" unauthorized burials"), and seeking
injunctive relief against the alienation, encumbrance, or destruction of any burial plots
located in Revilletown Cemetery. Mt. Zion Baptist Assn v. Mt. Zion Baptist Church
1 of Revilletown Park, 2016- 0151 ( La. App. 1 Cir. 10/ 31/ 16), 207 So. 3d 414, 415,
writ denied, 2016- 02109 ( La. 2/ 3/ 17), 215 So. 3d 697. On November 20, 2012, Axiall' s
predecessor, Georgia Gulf Chemicals & Vinyls, LLC (" Georgia Gulf"), filed a petition for
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intervention asserting ownership of Revilletown Cemetery and seeking dismissal of
MZBA Inc.' s petition for injunctive relief.
On October 3, 2014, Axial', as successor to Georgia Gulf, together with the
Church, filed a motion for summary judgment seeking dismissal of MZBA Inc.'s claims.
Mt. Zion, 207 So. 3d 416. On January 6, 2015, MZBA Inc. filed a supplemental and
amending petition which added as additional plaintiffs Janice Dickerson, plaintiff-
appellant herein, and Vivian Ann Craig Chiphe, both in their individual capacities and in
their representative capacities as ' heirs" of a member of MZBA involved in the original
acquisition of the cemetery property in 1881. The amending petition also effectively
added MZBA as an additional plaintiff. Mt. Zion, 207 So. 3d 416. In response to the
amending petition, Axiall and the Church filed a dilatory exception raising the objection
of lack of procedural capacity, arguing that MZBA lacked procedural capacity because it
had not filed suit through its president or other authorized representative.
On April 1, 2015, the trial court granted the motion for summary judgment filed
by Axiall and the Church. All of MZBA Inc.' s claims were dismissed with prejudice. MZBA
Inc. appealed, and this court affirmed the trial court's judgment.'
The remaining plaintiffs were then MZBA, Ms. Dickerson, and Ms. Chiphe. On
July 21, 2015, the trial court sustained Axiall and the Church' s exception of lack of
procedural capacity, but gave MZBA an opportunity to amend its petition. MZBA failed
to amend. On September 1, 2015, the trial court again sustained the exception of lack
of procedural capacity. The trial court executed a written judgment ordering MZBA to
amend its petition to include MZBA' s president or another representative authorized to
institute the lawsuit within sixty days, and providing that the lawsuit would be dismissed
with prejudice if the petition was not amended. MZBA likewise appealed the judgment
1 In MZBA Inc.' s appeal, it argued that the trial court erred because in determining: ( 1) that Axiall was in
possession of the Revilletown Cemetery property; and ( 2) that MZBA Inc. did not own the Revilletown
Cemetery property. Mount Zion Baptist Ass' n v. Mount Zion Baptist Church # 1 of Revilletown
Park, 2016-0150 ( La. App. 1 Cir. 10/ 31/ 16) ( unpublished), 2016 WL 6427683 * 2. This court found that
the trial court had erred in granting summary judgment holding that Axiall was in possession of the
Revilletown Cemetery property, because Axiall, as an intervenor, was not entitled to interject new issues
into the proceedings. Id. at * 3. However, this court found that the trial court had correctly held that
MZBA Inc. did not own Revilletown Cemetery, because MZBA Inc. had failed to comply with the statutory
requirements for a valid transfer of title from the unincorporated association to MZBA Inc., and therefore,
could not establish title. Thus, this court vacated the portion of the trial court judgment holding that
Axial[ was in possession of the Revilletown Cemetery property, denied that portion of the motion for
summary judgment requesting such relief, and affirmed the trial court's judgment in all other respects.
Id. at * 4.
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sustaining the exception of lack of procedural capacity. On appeal, this court affirmed
that portion of the judgment of the trial court sustaining the exception of lack of
procedural capacity, amended that portion of the trial court's judgment dismissing the
lawsuit with prejudice to provide that the dismissal was without prejudice, and affirmed
the judgment as amended. Mt. Zion, 207 So. 3d at 416- 419.
Cease and Desist Orders
During the pendency of Dickerson I, on November 19, 2015, the Louisiana
Cemetery Board (" Cemetery Board"), through the Louisiana Attorney General (' Attorney
General"), issued a cease and desist order to the Church pursuant to LSA- R. S. 8: 66. 2. 2
The November 19, 2015 cease and desist order was directed only to the Church. It was
not directed to either Axiall or Revilletown Cemetery, although neither possessed a
valid, unsuspended certificate of authority from the Cemetery Board. The Cemetery
Board subsequently contacted Axiall by letter dated September 16, 2016, and specified
that the November 19, 2015 cease and desist order was not directed at Axiall. The
September 16, 2016 letter further stated that the Cemetery Board authorized the single
at -need interment of Ms. Earnestine Jackson; that the Attorney General would not
pursue any claims of violations of law against Axiall related to Ms. Jackson' s interment;
and, that Ms. Jackson' s burial was not to be taken as a blanket authorization for Axiall
to act as a licensed cemetery authority for Revilletown Cemetery beyond that one
interment.
Thereafter, the Attorney General acquired credible evidence that interments were
possibly ongoing or contemplated at Revilletown Cemetery despite the cease and desist
order in effect. Thus, on November 17, 2016, the Attorney General issued a second
cease and desist order pursuant to LSA- R. S. 8: 66. 2, directed to Axiall, and ordered that
Axiall immediately cease and desist selling interment rights, cemetery spaces, or
conducting openings and closings of cemetery spaces, or allowing interments at
Revilletown Cemetery. The November 17, 2016 cease and desist order noted the
pending litigation regarding the rights, title, and legal authority to operate Revilletown
2 Under LSA- R. S. 8: 66. 2 the Attorney General, alone or in conjunction with the Cemetery Board, has
authority to issue cease and desist orders to cemeteries when it appears that the Louisiana Cemetery Act,
LSA- R. S. 8: 1, etseq., has been violated.
M
Cemetery. The order was therefore placed in effect until the pending litigation regarding
legal authority to operate Revilletown Cemetery was resolved, and until the Cemetery
Board had issued a valid, subsisting certificate of authority to Axiall, to Revilletown
Cemetery, or to another entity.
Dickerson II
The second lawsuit Ms. Dickerson was involved in regarding Revilletown
Cemetery (" Dickerson II') was filed on May 2, 2017. Ms. Dickerson, along with several
other descendants and relatives of individuals buried in the Revilletown Cemetery, filed
a" Petition for [ Temporary Restraining Order], Preliminary and Permanent Injunction"
petition for injunction") naming several defendants, including Axiall and Plant Security,
Inc.3 The petition for injunction alleged that the defendants had restricted access to
Revilletown Cemetery by erecting two fences around the property that were locked at
all times. As a result, the Revilletown Cemetery was only accessible during certain hours
with permission and with security personnel escorts. The petition for injunction further
alleged that Ms. Dickerson and the other plaintiffs had been denied access on Christmas
Eve, 2016; when they sought to place flowers on the graves of their deceased loved
ones; on Ms. Dickerson' s mother's birthday; when they sought to maintain the grounds;
and on weekends and holidays. Finally, the petition for injunction alleged that the
defendants forced plaintiffs from the cemetery when they had gathered for the funeral
of Hazel Jones in November of 2016. Therefore, Ms. Dickerson and the other plaintiffs
sought a temporary restraining order and subsequent injunctions prohibiting the
defendants from interfering with access to Revilletown Cemetery. At the time this
matter was submitted to this court, no hearing had yet been held on the temporary
restraining order.
Dickerson III
On October 31, 2017, Ms. Dickerson filed the third lawsuit she has been involved
in regarding Revilletown Cemetery (" Dickerson III"), a possessory action naming as
3 Westlake Chemical OPCO LP, Westlake Chemical OPCO GP LLC, Westlake Chemical Partners GP LLC,
and Westlake Chemical Partners LP were also named as defendants.
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defendants Axiall Corporation, Axiall, LLC, and Plant Security, Inc. (" Defendants"). 4 The
instant appeal arises from this possessory action.
In Dickerson III, Ms. Dickerson again raised allegations regarding the funeral of
Ms. Hazel Jones. More specifically, Ms. Dickerson asserted that in or around November
2016, the defendants disturbed Ms. Dickerson' s use and possession of Revilletown
Cemetery by blocking the funeral of Ms. Jones. Ms. Dickerson sought a judgment
restoring and maintaining possession of Revilletown Cemetery to her, her relatives, and
the Mount Zion Baptist Association, in addition to damages, costs, and legal interest. In
response, Defendants filed exceptions raising the peremptory objection of prescription,
the peremptory objection of no right of action, and the dilatory objection of lack of
procedural capacity. Ms. Dickerson opposed the exceptions, and Defendants filed a
reply to her opposition.
The trial court heard the exceptions on December 4, 2018. During the hearing,
the trial court stated that the question was " did [ Ms. Dickerson] file the [ possessory
action] within one year of the disturbance of [ her]... possession, and I guess my
decision, I have to decide what constitutes [ her] possession and what constitutes a
disturbance."
At the close of the hearing, the trial court stated, in pertinent part:
B] ased on the testimony, I' ve heard, there was, in fact, disturbances
prior to [ the blocking of Ms. Hazel ] ones' s funeral], and I' ll note that I
don' t know that [ Axiall] blocked that as much as the Attorney General
with the Cease and Desist.
I think there was testimony that - that -- with [ Axiall' s] permission granted
to [ the Church], that appears, to me, to be exercising dominion over the
property, both by the granting of the permission to it, which Ms.
Dickerson said she knew, as well as burial of people not from
Revilletown], prior to Miss Hazel' s funeral being blocked.
So, with regard to the reasons I just stated, one the funerals of other
folks there, the -- I find that as a disturbance, that weren' t from
Revilletown]. [ Ms. Dickerson] acknowledged that. The granting of the
right to [ the Church] to do that, as well as all the other acts over the
years of - of the fence and what not.
4 At the hearing of this matter, Plant Security, Inc., specifically adopted all the evidence introduced by
Axiall, the arguments of Axiall' s counsel, and the testimony elicited by Axiall' s counsel for and on behalf of
Plant Security, Inc.
1.1
Now, I - I question whether the actual fence was intended to exercise
dominion over [ Revilletown Cemetery] or to protect the Plant. I -- I' m not
certain, but I do find that there' s been other sufficient disturbances prior
to Ms. Jones' -- the blocking of her funeral; which again, I don' t know if
that was by [ Axiall]. I think that was more of the Attorney General and
the -- and the [ Cemetery Board].
So, for those reasons, as well as the reasons stated in [ Defendants']
memos and briefs and their argument, I' m going to grant the Exception of
Prescription.
Accordingly, the trial court executed a written judgment on January 2, 2019,
sustaining Defendants' exception of prescription, dismissing the possessory action with
prejudice, ordering each parry to bear their own costs, and denying the remaining
exceptions as moot. From this judgment, Ms. Dickerson appeals, alleging that the trial
court erred in sustaining the exception of prescription.
LAW AND DISCUSSION
The concept of possession is neither simple nor precise. Liner v. Louisiana
Land & Expl. Co., 319 So. 2d 766, 772 ( La. 1975). Possession is a matter of fact. LSA-
C. C. art. 3422. A person is in possession of immovable property when he has corporeal
possession thereof, or civil possession thereof preceded by corporeal possession by him
or his ancestors in title, and possesses for himself, whether in good faith or bad faith,
or even as a usurper. LSA- C. C. P. art. 3660. To acquire possession, one must intend to
possess as owner and must take corporeal possession of the thing. LSA- C. C. art. 3424.
A possessor with title is deemed to have constructive possession within the limits of his
title. LSA- C. C. art. 3426. However, a possessor without title has possession only of the
area he actually possesses. Id. Actual possession must be inch by inch possession, or
possession within enclosures. An enclosure is any natural or artificial boundary. LSA-
C. C. art. 3426 and comment ( d). Once acquired, possession is maintained by the intent
to possess as owner, even if the possessor ceases to possess corporeally. This is civil
possession. LSA- C. C. art. 3431.
One who has possessed a thing for over a year acquires the right to possess it.
LSA- C. C. art. 3422. The term " right to possess" is little more than a shorthand method
of saying that one has acquired the right to bring a possessory action. Todd v. State,
Through Dep' t of Nat. Res., 474 So. 2d 430, 437 ( La. 1985). The possessory action
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is one brought by the possessor of immovable property or of a real right therein to be
maintained in his possession of the property or enjoyment of the right when he has
been disturbed, or to be restored to the possession or enjoyment thereof when he has
been evicted. LSA- C. C. P. art. 3655; Poirrier v. Dale' s Dozer Service, Inc., 1999-
2593 ( La. App. 1 Cir. 11/ 3/ 00), 770 So. 2d 531, 535. The elements of proof in a
possessory action are set forth in LSA- C. C. P. art. 3658 as follows:
To maintain the possessory action the possessor must allege and prove
that:
1) He had possession of the immovable property or real right therein at
the time the disturbance occurred;
2) He and his ancestors in title had such possession quietly and without
interruption for more than a year immediately prior to the disturbance,
unless evicted by force or fraud;
3) The disturbance was one in fact or in law, as defined in Article 3659;
and
4) The possessory action was instituted within a year of the disturbance.
This court considered an exception of prescription in the context of a possessory
action in Griffin v. Lago Espanol, L. L. C., 2000- 2544 ( La. App. 1 Cir. 2/ 15/ 02), 808
So. 2d 833. In Griffin, the plaintiff began using the property in dispute in 1966. He had
no title to the property and paid no taxes on it. Id. at 835- 36. Griffin' s activities on the
property included riding a three wheeler and keeping a few items of livestock. Some
outbuildings were located on the property. A portion of the property was fenced in,
although it was unclear who built the fence and when. Griffin maintained the fence. Id.
at 836. In May of 1995, Griffin entered into a lease with Lago' s predecessor in title. Id.
at 839. In April of 1997, Lago learned that work was being done on the fence
surrounding the property. Accordingly, on April 9, 1997, Lago sent a letter to its lessees
who lived adjacent to the property, including Griffin, advising that Lago owned the
property and did not authorize the fence. Griffin contended he did not receive this
letter. Approximately two weeks later, Lago sent an employee to talk to Griffin about
the letter and to confirm work on the fence had stopped. Griffin represented to Lago' s
employee that he was not the party responsible for the work on the fence and that he
made no claim of ownership to the property. Lago' s employee observed that the work
on the fence had stopped. Id. at 836.
In October of 1997, Badger Oil Company, pursuant to a lease agreement with
Lago, began drilling operations for oil on the property. Griffin and his neighbors saw the
operations. On January 19, 1998, Lago sent Griffin a letter notifying him that the lease
on his house and lot was being terminated. Lago also sent Griffin a second letter
advising of Lago' s ownership, stating that Griffin' s cattle operations were not permitted
on the property, and demanding that Griffin vacate the property and remove all of his
belongings from the premises by January 31, 1998. Griffin filed suit against Lago on
January 14, 1999, claiming that Lago had disturbed Griffin' s possession of certain
property, or evicted Griffin from the property, on January 19, 1998. Id. at 836- 37. Lago
filed an exception of prescription, which the trial court deferred to the trial on the
merits and ultimately sustained after trial on the merits. Griffin appealed. Id. at 835. On
appeal, this court wrote:
Lago' s peremptory exception raising the objection of prescription asserts,
in pertinent part, that " even if Griffin was in possession of the tract in
question ( which Lago denies),
Griffin lost such possession by numerous
disturbances in both law and fact that occurred during the period of 1966
until his ultimate eviction on January 19, 1998." This language implies that
La. C. C. P. art. 3658( 2) provides for a liberative prescription of one year
and that since there were disturbances of Griffin' s possession within one
year of the date of the disturbance complained of in the petition, Griffin
lost his right of possession.
In his oral reasons for judgment, the trial judge stated the following:
Having said those things, let me point out that Mr. Griffin
was evicted on January 19, I believe, of 1998, and filed suit
on January 14 or something of ' 99, within a year of the
eviction. But I believe that he should have brought up, he
should have done something by maybe April of 1998 or
certainly no later than November or some time in 1999. The
well went in November or October of ' 97. So it would have
been October or November of ' 98. Having failed to do this,
the court is of the opinion that he did not institute his action
within one year, and the court feels that the exception of
prescription should be sustained and so rules.
This language implies that La. C. C. P. art. 3658( 4) provides for a liberative
prescription of one year, and that, since more than one year had elapsed
since the April letter and the commencement of the drilling
1997
operations on the property in October or November of 1997, that the
objection of prescription was well founded.
In his only assignment of error, Griffin asserts that "( T) he trial court
improperly ruled that the appellant's peaceful possession of the property
in question was interrupted in either April of 1997 as a result of a letter
allegedly sent by the Appellee to the Appellant or in October or November
of 1997 by the short term existence of an oil and gas well placed on the
property with the permission of the appellant." He contends the trial court
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erred by finding that these occurrences ' created a disturbance sufficient
enough to interrupt plaintiff's peaceful possession of the property in
question, thereby commencing prescription."
The disturbance sued upon is the eviction letter sent to the plaintiff on
January 19, 1998. The plaintiff filed suit on January 14, 1999, within the
one year period as required by La. C. C. P. art 3658( 4). The possessory
action must be instituted within a year of the disturbance. La. C. C. P. art
3658( 4).The possessor may suffer disturbances throughout the year
preceding the filing of the possessory action, and unless his possession
comes to an end in such a way that he cannot show that he was in
possession for more than a year prior to the disturbance complained of,
he has the right to bring the action within a year of the disturbance. Liner
v. Louisiana Land & Exploration Co., 319 So. 2d 766, 776 ( La. 1975). 5 La.
C. C. P. 3658( 2) does not mean that there must be no adverse claim for a
year before the disturbance. Id., at 776. In Mire v. Crowe, 439 So. 2d 517La. App. 1 Cir. 1983), the court stated that Crowe committed a number of
trespasses on the property. Crowe may also have conducted several
disturbances, each of which would have entitled Mire to bring a
possessory action. Id., at 523. However, failure to bring a possessory
action timely does not necessarily cause a loss of the right to possess. For
a disturbance to cause loss of the right to possess, it must amount to
eviction. It must bring home to the actual possessor the realization that
his dominion is being seriously challenged, and must last for more than a
year. See Yiannopoulos, Possession, 51 La. L. Rev. 523, 545 n. 131 ( 1991).
Although the plaintiff disturbances prior to filing suit, the
suffered
disturbance sued upon occurred on January 19, 1998, and this possessory
action was filed on January 14, 1999 within one year of the disturbance. It
was timely. La. C. C. P. art. 3658.
Griffin, 808 So. 2d at 837- 38.
Therefore, the Griffin court reversed the judgment sustaining the peremptory
exception raising the objection of prescription. 6 Griffin, 808 So. 2d at 838.
This court's previous opinion in Griffin recognizes, and hinges on, a critical
distinction between LSA- C. C. P. art. 3658( 2) and ( 4). Louisiana Code of Civil Procedure
article 3658 sets forth four elements a possessor must prove in order to maintain his
5 For clarity, we note that this sentence taken from the Supreme Court' s analysis in Liner, 319 So. 2d
766, was part of the discussion of the LSA- C. C. P. art. 3658( 2) requirement that one seeking to prevail on
a possessory action must allege and prove that he " had such possession quietly and without interruption
for more than a year immediately prior to the disturbance." In context, the sentence appeared as follows:
We must conclude then that the words quietly and without interruption' do not mean
that a possessor who suffers a ' disturbance' on several occasions in the year preceding
the suit has lost his right to bring the possessory action. The possessor may suffer
disturbances throughout the year preceding the filing of the possessory action, and
unless his possession comes to an end in such a way that he cannot show that he was in
possession for more than a year prior to the disturbance complained of, he has the right
to bring the action within a year of the disturbance.
Liner, 319 So. 2d at 776. Liner goes on to state, " C. C. P. 3658( 2) cannot, without adding a new
requirement to the possessory action, be read literally. It cannot mean that there must be no adverse
claim for a year before the disturbance." Id. Thus, Liner also references the required one year of
peaceful possession in terms of an alleged possessor's " right to bring the action," and not in terms of
prescription.
6 Because the exception was heard in conjunction with a trial on the merits and the record was therefore
complete, this court then proceeded to a de novo review of the record, and ultimately determined that
Griffin had failed to prove he possessed the property. Griffin, 808 So. 2d at 838.
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possessory action. Louisiana Code of Civil Procedure article 3658( 4) sets forth a one-
year prescriptive period, and requires that a party file his possessory action within one
year of the date of the disturbance of possession complained of therein. Griffin, 808
So. 2d at 837- 38. In contrast, Louisiana Code of Civil Procedure article 3658( 2) provides
that a party filing a possessory action hold such possession quietly and without
interruption for more than a year immediately prior to the disturbance, unless evicted
by force or fraud. The Louisiana Supreme Court in Todd, 474 So. 2d 430,' explained
this element of the possessory action as follows:
It should also be noted that the history of La. Code Civ. Pro. Ann. art. 3658
supports our conclusion that, in connection with the required one year of
peaceful possession, prescription is not involved. The source of art. 3658
is art. 49 of the Code of Practice, which in turn corresponds to the 1806
French Code of Civil Procedure art. 23, and the official comment to Article
3658 assures us that no change has occurred in the law with the article' s
incorporation in the Louisiana Code of Civil Procedure. French
commentators have explained that the requirement of one year's actual
possession for the availability of the possessory action is an emphasis on
continuity, which expresses the quality of possession, and the period takes
into account the agricultural cycle of preparation, planting and harvesting.
Such a period is no prescriptive right, but a procedural assurance of the
fact of undisturbed possession.
Todd, 474 So. 2d at 437- 38 ( footnotes omitted).
Thus, LSA- C. C. P. art. 3658( 2) does not mean that there must be no adverse
claim for a year prior to the disturbance complained of in a possessory action in order
for an alleged possessor to bring the possessory action. Liner, 319 So. 2d at 776;
Griffin, 808 So. 2d at 838. Rather, LSA- C. C. P. art. 3658( 2) requires as a procedural
element that an alleged possessor demonstrate the continuity, and therefore quality, of
the possession alleged, as part of his burden of proof when seeking to maintain his
possessory action. This requirement of one year of peaceful possession is not
connected to the question of whether the possessory action was timely filed, but
whether the possessor is procedurally entitled to maintain his possessory action on the
merits. See Todd, 474 So. 2d at 437- 38. This distinction between the one- year
As noted in Side By Side Redevelopment, Inc. v. City of New Orleans, No. CIV. A. 2009- 3860,
2010 WL 3946961, at * 5, fn. 10 ( E. D. La. Oct. 4, 2010), aff'd, 449 F. App' x 399 ( 5th Cir. 2011), the Todd
decision " demonstrates how difficult it can be to harness the concept of possession under Louisiana law."
Todd was decided by the Louisiana Supreme Court three times: first on original hearing, then reversed
on rehearing, and reversed a second time on rehearing. Each version of the opinion attempted to
definitively explain the contours of possession. However, ultimately, the seven justices on the court at the
time failed to agree.
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requirements of LSA- C. C. P. art. 3658( 2) and ( 4) has been recognized by both the Third
and Fifth Circuit Courts of Appeal. See Boneno v. Lasseigne, 534 So. 2d 968, 969
La. App. 5 Cir. 1988) (' Our previous opinion dealt with the prescriptive period
enunciated in the Louisiana Code of Civil Procedure Article 3658( 4) as it applied to the
various defendants, and not C. C. P. Art. 3658( 2) which mandates one year of peaceful
possession and involves a question of a[ plaintiff's] procedural right to
proceed")( footnote omitted); and see Hawkins v. Ashuca Co. Inc., 1994- 506
La. App. 3 Cir. 12/ 21/ 94), 649 So. 2d 766, 770, writ denied, 95- 0723 ( La. 4/ 28/ 95), 653
So. 2d 598 (" The one ( 1) year of possession required by law prior to a disturbance in
possession is a procedural requirement to maintain the action and not the prescriptive
period. The fact that a person may have left his property for over a year does not bar
his right to later return to the property, possess it for one ( 1) year, and assert his right
to possess it in a possessory action.").
In this matter, as in Griffin, the trial court's judgment sustaining the exception
of prescription was based on the court's factual determination that the plaintiff's
possession had been disturbed numerous times over a period of many years prior to the
institution of the possessory action. However, as this court explained in Griffin, LSA-
C. C. P. art. 3658( 4) requires that the possessory action be instituted within a year of the
disturbance sued upon. Therefore, the plaintiff's suit is timely when filed within one
year of the date of the disturbance sued upon. The disturbance sued upon in this
matter is the disruption of Ms. Hazel Jones' funeral in November of 2016. Ms. Dickerson
filed her possessory action on October 31, 2017, within one year from the date of the
disturbance sued upon, as required by LSA- C. C. P. art 3658( 4). Thus, although Ms.
Dickerson suffered disturbances prior to filing suit, her possessory action regarding the
blocking of the funeral of Ms. Hazel Jones was timely filed.
We note Defendants' reliance on prior jurisprudence in which this court was
tasked with determining whether a possessory action was timely filed. Our opinion
herein does not conflict with this jurisprudence. In Vermilion Parish School Board v.
Muller, 92 So. 2d 77 ( La. App. 1 Cir. 1957), the disturbance sued upon was the
construction of a fence. Plaintiffs filed suit more than a year after construction began,
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but within a year of when construction was completed. In Gomilla v. Ralston Purina
Company, 271 So. 2d 681 ( La. App. 1 Cir. 1972), writ denied, 274 So. 2d 391 ( La.
1973), the disturbance sued upon was the construction of an oxidation pond. Plaintiffs
filed suit more than a year after the defendant cleared the property where the pond
was constructed, and, in doing so, removed a fence, but within a year of the completion
of the oxidation pond. This court declined to calculate the prescriptive period based on
the completion of the fence in Vermillion and the completion of the oxidation pond in
Gomilla, and instead found that prescription began to toll when the disturbances sued
upon began. Therefore, the possessory actions in Vermillion and Gomilla were held
to be prescribed. In Harvey v. Harvey, 431 So. 2d 786 ( La. App. 1 Cir. 1983), the
disturbance sued upon was the construction of a fence, and plaintiffs filed their suit
within a year of same. The possessory action in Harvey was thus held to be timely.
In this matter, the issue before this court is, again, whether a plaintiff's
possessory action was timely filed. We make this determination based on the
disturbance sued upon. The disturbance sued upon is the blocking of the funeral of Ms.
Hazel Jones. The actions prior to the disturbance sued upon, including the erection of
the fences, may properly be considered on the merits of Ms. Dickerson' s possessory
action, particularly with regard to whether Ms. Dickerson can establish her procedural
right to maintain the action by proving peaceful possession as set forth in LSA- C. C. P.
art. 3658( 2). However, these fences, the unauthorized burials, and the other events on
which the trial court based its ruling to grant the exception of prescription are not the
disturbance sued upon by Ms. Dickerson. Thus, they are not determinative of this
exception of prescription.
The January 2, 2019 judgment sustaining the peremptory exception raising the
objection of prescription and dismissing Ms. Dickerson' s possessory action with
prejudice is reversed. Judgment is rendered in favor of Ms. Dickerson and against
Defendants overruling the exception of prescription.$ See Griffin, 808 So. 2d at 838.
Further, as the exceptions of no right of action and lack of procedural capacity were
8 We note that Ms. Dickerson also argues that the trial court erroneously relied on inadmissible hearsay.
Given our ruling herein, we find it unnecessary to address this assignment of error.
13
denied as moot based on the grant of the exception of prescription, the January 2,
2019 judgment is vacated in this regard. We remand this case to the trial court, for
proceedings consistent with the opinion rendered herein, including consideration of the
exceptions of no right of action and lack of procedural capacity.
DECREE
For the foregoing reasons, the January 2, 2019 judgment of the trial court is
reversed in part and vacated in part. We remand this matter to the trial court for
further proceedings consistent with the reasoning expressed herein.
REVERSED IN PART; VACATED IN PART; AND REMANDED.
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JANICE DICKERSON STATE OF LOUISIANA
VERSUS COURT OF APPEAL
AXIALL CORPORATION, FIRST CIRCUIT
AXIALL, LLC, AND PLANT
SECURITY, INC. NO. 2019 CA 0813
HOLDRIDGE, J., CONCURRING
Ck
I concur in the result to remand this matter to the trial court for further
proceedings. Even though the plaintiff' s possession was conceded for the purpose
of the objection of prescription, I am unable to determine what type of possession
the plaintiff supposedly exercised ( over the entire cemetery, over only the
cemetery plots, or inch -by -inch over certain property within the cemetery). It is
impossible to determine whether the alleged disturbance ( the blocking of the
funeral of Ms. Hazel Jones) interrupted the peaceful possession of the plaintiff if
we are unable to determine what the plaintiff actually possessed. There are a
number of questions that must be answered prior to a discussion of prescription,
such as what constitutes the possession of a cemetery and what causes that
possession to be disturbed. Thus, I agree that the objection of prescription under
these circumstances was improvidently granted, and I would remand to the trial
court to consider the objections of no right of action and lack of procedural
capacity prior to ruling on the prescription objection.