     Case: 13-31043   Document: 00512756238   Page: 1   Date Filed: 09/04/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals

                              No. 13-31043
                                                                          Fifth Circuit

                                                                        FILED
                            Summary Calendar                    September 4, 2014
                                                                   Lyle W. Cayce
EXCO OPERATING COMPANY, L.P.,                                           Clerk


                                        Plaintiff–Appellee
v.

EVELYN ARNOLD; THEODORE ARNOLD; MARISSA BUTLER; GRETA
TURNER BURTON; ARVETTA TURNER COLEMAN; ET AL; J'LYSHAE G.
BURNS; JAMES EARL BURNS; PATRICE EBONY BURNS; LATAISHA
ROCHELLE BURNS; AUDREY BURNS DUCHENE; DELESHA DAWN
BURNS MAHONEY; SIBON PIERCE; ROMIE DENISE MORRIS; CHARLES
EDWARD PIERCE; BARBARA BURNS ROBINSON; FREDERICK VAUGHN
TURNER; HEZEKIAH TURNER, JR., EDDIE RAY TURNER, JR.; TYREE
WAYNE TURNER; HARRY JAMES ZEHNER,

                                        Defendants–Appellees

LLOYD TURNER,

                                        Defendant–Appellant



                Appeal from the United States District Court
                   for the Western District of Louisiana
                          USDC. No. 3:10-CV-1838


Before REAVLEY, JONES, and PRADO, Circuit Judges.
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                                      No. 13-31043
PER CURIAM:*
       Plaintiff–Appellee      Exco    Operating      Company       (“Exco”)    filed    an
interpleader action in the district court to determine the identities of the
rightful heirs to the proceeds from a mineral-producing property. The district
court adopted the special master’s recommendation that certain individuals
were the rightful heirs, and that their claims were not time-barred. We affirm.
           I.   FACTUAL AND PROCEDURAL BACKGROUND
       This case involves a unit of land located in Jackson Parish, Louisiana
(the “Property”), owned by Ned and Nannie Turner. According to an October
18, 1932 Judgment of Possession found in Jackson Parish records (the
“Judgment of Possession”), Ned Turner passed away on March 28, 1909. His
wife Nannie Turner passed away on September 24, 1932. The Judgment of
Possession recognized seven individuals as the heirs of Ned and Nannie Turner
(the “Judgment Heirs”).
       Anadarko Petroleum Corporation (“Anadarko”) contracted landmen to
seek and obtain oil and gas leases to the Property. The landmen identified not
only the Judgment Heirs, but three additional heirs—Jane Turner Pierce,
Mattie Turner Henderson, and Willie Turner—that were not recognized in the
Judgment of Possession (the “Other Heirs”). Anadarko paid proceeds from the
Property to both groups of heirs and their successors and assigns.                      Exco
continued to make these payments after it acquired all of Anadarko’s right,
title, and interest in the Property.
       Lloyd Turner (“Lloyd”), a descendant of one of the Judgment Heirs,
demanded an accounting of payments made from Exco, alleging that payments



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

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were being improperly made to descendants of the Other Heirs. In response,
Exco filed an interpleader action.         Lloyd filed an answer and filed a
reconventional demand for an accounting from Exco, seeking payments of
amounts he alleges were improperly paid to the successors and assigns of the
Other Heirs.
      Upon motion by Exco, the district court appointed a special master to
“examine the title and family records concerning the land at issue and assist
this Court in making a determination of the ownership of the mineral interests
and royalty money at issue.” In his Report and Recommendation, the special
master determined as a matter of fact that “the Other Heirs, as well as the
Judgment Heirs, are the descendants of Ned and Nannie Turner.” The special
master also recommended the district court find, as a matter of law, that
neither liberative prescription nor acquisitive prescription barred the Other
Heirs, or their successors and assigns, from having their claims to the Property
recognized.    Having considered the Report and Recommendation and the
objections thereto, the district court adopted the special master’s Report and
Recommendation with a modification not relevant here. Lloyd timely appeals.
                            II.   DISCUSSION
      The district court had subject matter jurisdiction pursuant to 28 U.S.C.
§§ 1332 and 1335. Because Lloyd seeks review of a final judgment of the
district court, this Court has jurisdiction pursuant to 28 U.S.C. § 1291.
      This Court reviews factual findings of a special master, adopted by the
district court, for clear error. Marine Indem. Ins. Co. of Am. v. Lockwood
Warehouse & Storage, 115 F.3d 282, 287 (5th Cir. 1997) (citing Fed. R. Civ. P.
52(a)).   “[T]he reviewing court must give due regard to the trial court’s
opportunity to judge the witnesses’ credibility,” Fed. R. Civ. P. 52(a)(6), and
should reverse “under the clearly erroneous standard ‘only if [it has] a definite
and firm conviction that a mistake has been committed,’” French v. Allstate
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Indem. Co., 637 F.3d 571, 577 (5th Cir. 2011) (quoting Canal Barge Co. v. Torco
Oil Co., 220 F.3d 370, 375 (5th Cir. 2000)). Therefore, “[w]here there are two
permissible views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564,
574 (1985); see also United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949)
(“[A] choice between two permissible views of the weight of evidence is not
‘clearly erroneous.’”). “Questions of statutory interpretation are questions of
law and thus reviewed de novo.” Kemp v. G.D. Searle & Co., 103 F.3d 405, 407
(5th Cir. 1997).
      Lloyd presents two issues on appeal. First, Lloyd argues that the district
court erred in finding that there was sufficient evidence that the Other Heirs
were descendants of Ned and Nannie Turner. Second, Lloyd argues that the
Other Heirs were time-barred from asserting any claim to the proceeds of the
Property. We disagree with each argument in turn.
A. There Was Sufficient Evidence to Recognize the Other Heirs
      “A judgment of possession is prima facie evidence of the right of the heirs
in whose favor it was rendered to take possession of the decedent’s estate;
however, it is not . . . conclusive evidence against persons having an adverse
interest in . . . the estate, such as heirs or creditors of the estate.” Quiett v.
Estate of Moore, 378 So. 2d 362, 367 (La. 1979). Here, the district court did not
clearly err when it found that the Other Heirs were the descendants of Ned
and Nannie Turner, thereby overcoming the prima facie evidence of the
Judgment of Possession.
      In recommending that the Other Heirs were descendants of Ned and
Nannie Turner, the special master relied upon a variety of evidence, including:
census reports from 1880 and 1910; affidavits obtained by Anadarko’s
contracted landmen; and the testimony of Lucette Giles (“Giles”), the
granddaughter of one of the Judgment Heirs, Wilson Turner. After Ned passed
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away, the 1910 census showed Nannie Turner as “Head of Household,” with
Jane Turner as “daughter” and Willie Turner as “son.”         The 1880 census
showed Ned Turner as “Head of Household,” “Annie” as “wife,” Wilson as “son,”
Jane as “daughter,” and Mattie as “son.” The special master found that the
Nannie referred to in the 1910 census and the Annie from the 1880 census were
the same person, thereby supporting the finding that the Other Heirs—Jane,
Mattie, and Willie—were descendants of Ned and Nannie Turner.               This
evidence, according to the special master, was consistent with the landmen’s
affidavits, which identified both the Judgment Heirs and Other Heirs. The
special master also found that the census records were consistent with Giles’s
testimony that her grandfather, one of the Judgment Heirs, told her of his
sister, Jane.
      In opposition, Lloyd never cites the clear error standard, much less
applies it. Rather, Lloyd simply attempts to muddy the available evidence.
For example, Lloyd argues that there is no evidence that the Ned Turner in
the 1880 census is the same Ned Turner at issue here.          Moreover, Lloyd
nitpicks that the “Jane” in the 1910 census is stated to be 30 years old, when
in fact she would have been 33 at the time. Lloyd also provides an alternate
theory of the census records, speculating that the Annie and Nannie referred
to in the census records “were likely collaterals who live on adjacent property
with husbands who had the same first name and last name.”
      Lloyd’s argument would have us require that the special master’s finding
be supported by a perfect accounting of each and every heir. But this is not
required on clear error review. Even if Lloyd’s unsupported speculation were
a permissible view, “a choice between two permissible views . . . is not ‘clearly
erroneous.’” See Yellow Cab Co., 338 U.S. at 342. The district court did not
clearly err when it found that the Other Heirs were descendants of Ned and
Nannie Turner.
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B. The Other Heirs’ Claims Are Not Time-Barred
      A limitations period in the common law is either liberative or acquisitive.
Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 777 (5th Cir. 1997).
Neither liberative prescription nor acquisitive prescription barred the Other
Heirs’ claims to the proceeds from the Property.
      This Court has previously held that liberative prescription does not bar
real actions such as the one here. See Songbyrd, 104 F.3d at 778 (“[L]iberative
prescription does not bar real actions seeking to protect the right of
ownership. . . . Thus, it is well established in Louisiana that the petitory action
(for the protection of immovables) is not barred by liberative prescription.”
(citations and internal quotation marks omitted)). While Lloyd argues that
Songbyrd was wrongly decided, he makes no attempt to cite any intervening
change in law that would permit us to overturn a prior panel’s decision.
Accordingly, we must follow Songbyrd and hold that liberative prescription
does not bar the Other Heirs’ claims here. See Jacobs v. Nat’l Drug Intelligence
Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is a well-settled Fifth Circuit rule of
orderliness that one panel of our court may not overturn another panel’s
decision, absent an intervening change in the law . . . .”).
      Lloyd also fails to point to any error in the district court’s finding that
acquisitive prescription did not apply. “Acquisitive prescription is a mode of
acquiring ownership or other real rights by possession for a period of time.”
La. Civ. Code Ann. art. 3446. “In order for one coowner or coheir to prescribe
against the other, his possession must be clearly hostile to the rights of the
other” and he must have given notice to the other “of his intention to hold,
animo domini, all of the common property.” Lee v. Jones, 69 So. 2d 26, 28 (La.
1953).
      The special master found that, under Louisiana Civil Code Article 962,
the Other Heirs were presumed to have accepted the succession. See La. Civ.
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Code Ann. art. 962 (“In the absence of a renunciation, a successor is presumed
to accept succession rights.”). Thus, according to the special master, Lloyd’s
claim of acquisitive prescription was against a coheir, but acquisitive
prescription did not apply because there was no notice given to the Other Heirs
sufficient to start the running of the acquisitive prescription period.     The
district court adopted these findings.
      Lloyd argues that his claim of acquisitive prescription was not against a
coheir because, prior to the 1997 enactment of Article 962, Louisiana law
required acceptance of succession. Because the Other Heirs never accepted
succession, Lloyd continues, notice was not required. However, Lloyd makes
no argument that Article 962 does not apply to this case. We thus treat any
argument that Article 962 does not apply as waived. See, e.g., In re Repine,
536 F.3d 512, 518 n.5 (5th Cir. 2008) (finding argument waived “due to
inadequate briefing” where appellant “fail[ed] to explain” the argument and
did not “cite any authority to support her position” (citation omitted)). Having
failed to establish that Article 962 does not apply here, Lloyd’s sole argument
for acquisitive prescription, based on Louisiana law pre-existing Article 962,
must be rejected.
                          III.   CONCLUSION
      The judgment of the district court is AFFIRMED.




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