### REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-30670

Summary Calendar.

SONGBYRD, INC., Plaintiff-Appellant,

v.

BEARSVILLE RECORDS, INC.; Albert B. Grossman, Estate of,

erron eously sued as Bearsville Records, Inc., doing business as

Bearsville Records, Defendants-Appellees.

Feb. 4, 1997.

Appeal From the U.S. District Court for the Eastern District of

Louisiana.

Before HIGGINBOTHAM, DAVIS and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant SongByrd, Inc. (SongByrd) appeals from the

district court's dismissal of its action se eking to recover from

Defendant-Appellee the Es tate of Albert B. Grossman d/b/a

Bearsville Records (Bearsville), several master tapes recorded by

a legendary New Orleans musician. Concluding that (1) the district

court improperly classified SongByrd's suit as a personal rather

than a real action, (2) real actions are imprescriptible under

Louisiana law, and (3) Bearsville has yet to establish that it gave

SongByrd's predecessors-in-interest actual notice of Bearsville's

intent to possess the tapes for itself, we reverse the district

court's summary judgment ruling and remand for further proceedings

consistent with this opinion.

I1 These uncontroverted background facts are recounted in the

liner notes to the album, Professor Longhair, Houseparty New

Orleans Style: The Lost Sessions 1971-72, Rounder Records

(1987), which SongByrd submitted as an exhibit in response to

Bearsville's motion to dismiss. FACTS AND PROCEEDINGS

The late Henry Roeland Byrd, also known as " Professor

Longhair," was an influential New Orleans rhythm-and-blues pianist

and composer, and is widely regarded as one of the primary

inspirations for the renaissance of New Orleans popular music over

the last thirty years. His numerous hits included original

compositions such as "Tipitina" and "Go to the Mardi Gras," as well

as his famous renditions of Earl King's "Big Chief." After

achieving modest commercial success as a local perfor mer and

recording artist in the 1940's and 1950's, Byrd fell on hard times

during the 1960's. His fortunes began to change for the better in

1970, however, when New Orleans music aficionado Arthur "Quint"

Davis, along with others, founded the New Orleans Jazz and Heritage

Festival ("JazzFest"). Needing talented performers for JazzFest,

Davis located Byrd in 1971 working in an obscure record store in

New Orleans and transformed him into a perennial star attraction of

the JazzFest and other venue s from that time until his death in

1980. 1

Soon after Byrd's first performance at JazzFest, Davis, acting

as the pianist's manager, and Parker Dinkins, an attorney, arranged

for Byrd to make several "master recordings" at a Baton Rouge

recording studio known as Deep South Recorders. These master

recordings consist of four reels of 8-track tape which could be

"mixed" to produce either demonstration tapes or final recordingssuitable for the production of records, cassettes, and compact

discs. According to SongByrd, several demonstration tapes produced

from these master recordings found their way to Bearsville Records,

Inc., a recording studio and record company located in Woodstock,

New York and operated by Grossman. Impressed by the demonstration

tapes, Grossman apparently arranged with Davis and Dinkins for Byrd

and another New Orleans musician to travel to Bearsville's studio

for a recording session.

For reasons that are unclear but not material to this appeal,

the Bear s ville recording sessions proved unsatisfactory. For

equally unclear reasons, Davis an d Dinkins wanted Grossman to be

able either to listen to or play for others the full version of the

Baton Rouge master recordings. In furtherance of this desire,

Davis and Dinkins caused the four "master recording" tapes to be

delivered to Grossman in Ne w York. According to the as yet

unrefuted affidavit of Davis, these tapes were delivered to

G rossman, "as demonstration tapes only, without any intent for

either Albert Grossman or Bearsville Records, Inc. to possess these

aforementioned tapes as owner." Also for reasons as yet not

e xplained by either party, the tapes remained in Grossm an's

possession for many years thereafter.

Acting on behalf of Davis and Byrd in 1975, Dinkins wrote two

letters to Bearsv ille—the first addressed to a George James, the

second to Grossman himself—requesting that Bearsville return the

master recording tapes. Bearsville made no response whatsoever to

Dinkins' letters (or at least has not introduced any evidence of a

response). Dinkins, for reasons as yet unknown, did not press his2 The only oblique reference to Bearsville is found in the

third section of the liner notes authored by "The Rounder Folks"

and states: "Sadly these tapes [the Baton Rouge master

recordings] were not released, but instead languished at

Bearsville, their absence unremarked and unnoticed except among

collectors and a few cognoscenti." request any further.

After Albert Grossman's d eath in the mid 1980's, Bearsville

Records, Inc. was dissolved, but Grossman's estate continued to do

business as "Bearsville Records." Even though it no longer signs

artists or pr omotes their products, Bearsville Records still

operates a recording studio which it leases to record labels and

third parties; it also licenses a catalog of recordings by artists

originally under contract with Bearsville Records, Inc. Acting in

this latter capacity, Bearsville licensed certain of the Byrd

master recordings to Rounder Records Corporat ion of Cambridge,

Massachusetts (Rounder) for an advance against royalties.

In 1987, Rounder released Professor Longhair, Houseparty New

Orleans Style: The Lost Sessions, an album that contained 11 songs

or "tracks" made from Byrd's original Baton Rouge master

recordings. This release garnered Byrd a posthumous Grammy Award

for Best Traditional Blues Album of 1987. The liner notes of the

Rounder albummake hardly any reference to Bearsville and no

reference whatsoever to the contractual agreement between Rounder

and Bearsville. 2 Bearsville Records also licensed certain of the

master recordings to another record company, Rhino Records (Rhino).

According to SongByrd's petition, Rhino released an album, titled

"Mardi Gras in Baton Rouge," featuring seven tracks from the Baton

Rouge master recordings.3 Although defenses are generally not the proper subject of

Rule 12(b)(6) motions, certain affirmative defenses that clearly

appear on the face of the plaintiff’s complaint - most commonly

that the statute of limitations has run - may properly be

asserted in a Rule 12(b)(6) motion. See Kansa Reinsurance Co.,

Ltd. v. Congressional Mortgage Corp. of Texas , 20 F.3d 1362, 1366

(5th Cir. 1994); 5A Charles A. Wright & Arthur R. Miller, Federal

Practice & Procedure § 1357, at 352 (1990). As Bearsville

submitted affidavits and exhibits in support of its 12(b)(6)

motion asserting the affirmative defense of liberative

prescription, however, the court rectified any potential pleading

deficiency by treating Bearsville’s motion as one for summary

judgment under Rule 56(c). In 1993, SongByrd, Inc. was incorporate d and commenced

business as successor-in-interest to the intellectual property

rights of Byrd and his deceased widow, Alice Walton Byrd. In 1995,

SongByrd filed this lawsuit in state court in New Orleans against

Bearsvill e Records, Inc. SongByrd's "Petition in Revindication"

sought a judgment (1) recognizing i ts ownership of the master

recordings, (2) ordering return of the recordings, and (3) awarding

damages. Bearsville timely removed the suit to federal court and

subsequently filed a motion to dismiss pursuant to Fed.R.Civ.P.

12(b)(2) and (6), asserting (a) lack of personal jurisdiction over

Bearsville and (b) failure of SongByrd to state a cause of action

becau se SongByrd's claims were barred by l iberative prescription

under Louisiana law. As both parties submitted affidavits and

exhibits outside the pleadings, however, the district court

correctly treated Bearsville's motion to dismiss as a motion for

summary judgment under Fe d.R.Civ.P. 56(c). 3 Pretermitting the

question of personal jurisdiction, the district court then granted

the motion and dismissed SongByrd's case. The court held that

S ongByrd's action was barred by liberative prescription and also

rejected SongByrd's argument that at all times Bearsville has been4 Morin v. Caire, 77 F.3d 116, 123 (5th Cir.1996); Nat.

Ass'n of Govern. Emp. v. City Public Serv. Bd. of San Antonio,

Tex., 40 F.3d 698, 712 (5th Cir.1994).

5 Fed.R.Civ.P. 56(c).

6 Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181

(5th Cir.1996). only a precarious possessor and therefore prescription ha s never

commenced to run. SongByrd timely filed its notice of appeal from

the district court's ruling.

II

ANALYSIS

A. Standard of Review

When a district court treats a Rule 12(b)(6) motion as a

motion for su mmary judgment under Rule 56(c) because matters

outside the pleadings are presented to and not excluded by the

court, we review the grant of such a motion just as we would any

other grant of summary judgment—that is, we review the grant of

summary judgment de novo and apply the same legal standards as the

district court. 4 Accordingly, summary judgement is appropriate "if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law." 5

Further, we construe all evidence in the light most favorable to

the non-moving party without weighing the evidence, assessing its

probative value, or resolving any factual disputes. 6

B. Applicable Law —Erie- Bound

1. Special Louisiana Erie Considerations7 Alvin B. Rubin, Hazards of a Civilian Venturer in a Federal

Court: Travel and Travail on the Erie Railroad, 48 La.L.Rev.

1369, 1372 (1988) (citations omitted) (emphasis in original).

8 Shelp v. National Surety Corp., 333 F.2d 431, 439 (5th

Cir.), cert. denied, 379 U.S. 945, 85 S.Ct. 439, 13 L.Ed.2d 543

(1964). The basis of our jurisdiction, and that of the district court,

to decide the instant case is diversity of citizenship, under which

a federal court's obligation is to apply substantive state law. In

Louisiana this obligation has special dimensions be cause of our

unique Civilian tradition. We remain ever aware of the late Judge

Rubin's caution to federal Erie courts applying Louisiana Civil law

to steer clear of the common law principle of stare decisis and to

apply inst ead the distinctly Civilian doctrine of j urisprudence

constante:

Because of the reviewing power of [Louisiana] ap pellate

courts, the [Louisiana] trial judge may pay great respect to

the decisions of these courts. He is not bound to do so,

however, because the doctrine of stare decisis does not apply.

In stead, each judge, trial and appellate, may consult the

civil code and draw anew from its principles. Interpretation

of the code and other sources of law is appropriate for each

judge. The judge is guided much more by doctrine, as

expounded in legal treatises by legal scholars, than by the

decisions of colleagues.... Instead of s tare decisis, the

rule is one of deference to a ser ies of decisions,

jurisprudence constante. 7

Emphatically elaborating on the proposition that E rie "does

not command blind allegiance to [any] case on all fours with the

case before the court, 8 " now-Chief Judge Politz wrote that:

If anything, this flexibility is even greater when a federal

court sits as a Erie court applying the Louisiana civil law.

In such cases, " the Erie obligation is to the [Civil] Code,

the "solemn expression of legislative will. ' " S help, 33 3

F.2d 439 (quoting the very first article of the Louisiana

Civil Code). The Louisiana Supreme Court has taken great

pains to "plainly state that

... the notion of stare decisis,

derived as it is from the common law should not be thought9 Green v. Walker, 910 F.2d 291, 294 (5th Cir.1990)

(footnotes omitted) (emphasis added). See also Principal Health

Care of Louisiana, Inc. v. Lewer Agency, Inc., 38 F.3d 240, 245

n. 6 (5th Cir.1994) ("Louisiana, being the only civil law

jurisdiction among the fifty states, is unique in that its

approach to solving most legal questions begins first and

foremost with a review of the Louisiana Civil Code. The Civil

Code is thus the civilian's "Bible.' Jurists in common law

jurisdictions, on the other hand, usually begin with a review of

the case law on a particular issue."). controlling in this state. " A rdoin v. Hartford Acc. & Indem.

Co., 360 So.2d 1331, 1334 (La.1978). While caselaw in the

State of Louisiana is acknowledged as "invaluable as previous

interpretation ..." [ id. at 1335], it is nonetheless properly

regarded as "secondary information." Id. at 1334. 9

2. Prescription

The central issue in the instant appeal is whether plaintiff's

action is time ba rred. The answer to this question depends on

whether the applicable period of limitation—prescription in

Louisiana; statute of limitations in the common law—is liberative

or acquisitive. As shall be seen from our analysis of the

p ertinent provisions of the Louisiana Civil Code and from "le gal

treatises by legal scholars," the applicable type of prescription

is acquisitive. And, as shall also be seen below, our analysis of

Louisi ana case law reveals that (1) this determination comports

with implications of the most recent pronouncement of the Supreme

Court of Louisiana, and (2) at the very least, the "jurisprudence"

on point is n ot "constante," which frees us to pursue our o w n

analysis of the Code, with the help of doctrinal writing.

C. Revendicatory Actions Are Imprescriptible

SongByrd cont ends that the district court erred when it

determined th at SongByrd's action seeking recognition of its

ownership interest in the master recordings, return o f those10 A.N. Yiannopoulos, 2 Louisiana Civil Law Treatise § 241,

476 (1991).

11 See La.Civ.Code art. 526.

12 La.Civ.Code art. 526, cmt. b.; see also Yiannopoulos,

supra, §§ 347 & 350, at 675-77 & 680-81 (on availability of real

or revendicatory actions for the recovery of movable property

under Louisiana law). recordings, and damages, has prescribed under Louisiana law. The

district court's memorandum order held that SongByrd's action had

prescribed under Louisiana Civil Code Articles 3499 a nd 3492

regardless of whether SongByrd's claims were based in contract,

quasi-c ontract, or tort. In so doing, the district court

implicitly characterized SongByrd's action as a "personal action"

arising from th ese areas of law. This characterization of

SongByrd's action constitutes the first and fundamen t al error

committed by the district court and led to its first erroneous

holding.

As explained by Professor A.N. Yiannopoulos in his treatise

on Louisiana property law, actions seeking recognition of ownership

or enforcement of the rights thereof, whether in movable or

immovable property, are not personal actio ns; they are " r eal

actions." 10 Such real actions, otherwise known as "revendicatory

actions," are expressly authorized by the Louisiana Civil Code. 11

A s the official comments to the Code make clear, there are two

kinds of revend icatory action, depending on the object of the

ownership interest that the plaintiff s eeks to have recognized:

(1) a " petitory action " for the recovery of immovable property

(real estate), and (2) an " innominate real action " for the

recover y of movable property (personalty). 1 2 Further, any13 Yiannopoulos, supra, § 242, at 477.

14 See La.Civ.Code arts. 3492-3502.

15 Yiannopoulos, supra, § 249, at 487.

16 All-State Credit Plan Natchitoches, Inc., v. Ratliff, 279

So.2d 660, 666 (La.1972).

17 Yiannopoulos, supra, § 249, at 487; see also Northcott

Exploration Co. v. W.R. Grace & Co., 430 So.2d 1077, 1080

(La.Ct.App. 3rd Cir.1983). "incidental demand for damages made in an action for the recovery

of an immovable [or a movable] does not affect the classification

of the main demand as a real action." 13

It follows from this basic dichotomy that, as the Civil Code

specifically provides liberative prescription periods for all

manner of personal actions (including delictu al, contractual and

quasi-contractual actions), 1 4 "[l]iberative prescription does n o t

bar real actions seeking to protect the right of ownership." 15 The

rationale for this distinction is that "[u]nder our Civil Code,

ownership can never be lost by the failure to exercise it—only by

the acquisition of ownership by another through possession

suffi cient to acquire it through an acquisitive prescription." 1 6

Thus, it is well established in Louisiana that the petitory action

(for the protection of immovables) is not barred by liberative

prescription. 17 The same rule applies to the revendicatory action

brought to assert or protect the right of ownership in movable

property because it, too, is a real action, not a personal one. On

th is point Professor Yiannopoulos' L ouisiana Civil Law Treatise

could not be clearer:

An action that is grounde d on a wrongful act, that is, an

offense or quasi-of fense, is subject to the prescription of18 Yiannopoulos, supra, § 358, at 692-93 (emphasis added).

19 See id. § 358, at 693, n. 5-8 (cases cited therein).

Neither the briefs filed by the parties nor our independent

research reflect even relatively recent treatment of this issue

by the Louisiana Supreme Court, and the older case law is, at

best, mixed. Cases from the 1920's and 1930's occasionally

characterize as delictual (tort), actions involving alleged

illegally or fraudulently appropriated movable property, and

opinions from the 1930's and early 1940's classified as

quasi-contractual or personal, actions seeking recovery of

wrongfully taken movables or proceeds of involuntary alienation

of movables.

20 See, e.g., McGuire v. Monroe Scrap Material Co., 189 La.

573, 180 So. 413 (1938) (characterizing as delictual an action

for value of movable property alleged to have been illegally and

fraudulently appropriated); Carter-Allen Jewelry Co. v.

Overstreet, 165 La. 887, 116 So. 222 (1928) (characterizing as

delictual an action by jeweler alleging that salesman stole

customer's ring or permitted someone else to steal it through his

negligence).

21 See, e.g., Kramer v. Freeman, 198 La. 244, 3 So.2d 609

(1941) (plaintiff seeking recovery of wrongfully taken movables

had cause of action in tort and quasi-contract, with pleadings

indicating a waiver of tort action); Smith v. Phillips, 175 La.

198, 143 So. 47 (1932) (action by former homeowner to recover

portion of proceeds of Sheriff's sale as homestead exemption

characterized as personal action subject to ten-year liberative

prescription under civil Code article 3544 (1870)). one year and an action grounded on quasi-contract is subject

to the prescription of ten years. T he revendicatory action

[for the reco very of movable property] is imprescriptible;

however, such an object is without object when the defendant

has acquired the ownership of a movable by the acquisitive

prescription of three or ten years. 18

Despite this obvious truism of Civilia n doctrine, 1 9 a number of

older Louisiana decisions overlooked or disregarded it and, just as

the district court did here, ap plied either one-year or ten-year

periods of liberative prescription on the erroneous assumption that

the revendicatory action is personal in nature, either delictual 20

or quasi-contractual. 21

Nevertheless, a 50-year old Louisiana Suprem e Court case,22 212 La. 37, 31 So.2d 416 (1947).

Faison v. Patout, 22 appears to be the most recent pronouncement on

point, and it supports our reading of the Civil Code and Professor

Yiannopoulos' reading as well. In F aison, Mrs. Hypolite Patout

executed a manual donation of her jewelry to her two daughters.

Following the donor's dea th, one of her sons, Sebastian Patout,

suggested to his sisters that it was unsafe for them to keep this

jewelry in one sister's bedroom; so, with his sisters' permission,

Sebastian put the jewe lry in h is bank safety deposit box.

Sebastian died some twelve years later, whereupon his widow removed

the jewelry from the safety deposit box and refused to give it to

the sisters. In the sisters' suit to recover the jewelry, the

trial court held, and the Louisiana Supreme Court agreed, that the

sisters were the true owners. More significant to our

consideration today, the P atout defendants (children of Mrs.

Hypolite Patout's sons) had pled liberative presc ription under

Louisiana Civil Code article 3544 (1870). They contended that

their aunts' action was personal and thus had prescribed because

more than ten years had elapsed between the time the property left

the aunts' possession and the time suit was filed. Rejecting this

contention, the Supreme Court wrote:

There might be some merit in a plea of prescription if

S ebastian Patout had possessed the property f or himself and

the other heirs, and advers ely to [his sisters], but the

record convinces us that he was acting as depository for his

two sisters, these plaintiffs, and that his possession of the

property was for their benefit—for them, and not in his own name or right.

Counsel for defendants is in error in his contention that the

ten-year [liberative] prescription under article 3544

commenced to run in March 1931 [when Sebastian took possession23 Id. at 418-19 (emphasis added).

24 See also Jeanfreau v. Jeanfreau, 182 La. 332, 162 So. 3

(1935) (owner of motorboat made simulated title transfer to his

brother "for convenience sake only," never intending to

relinquish actual ownership. In true owner's suit to recover the

boat, defendant's plea of acquisitive prescription of three years

under Louisiana Civil Code articles 496, 3506, and 3476 (1870)

recognized implicitly by Louisiana Supreme Court as proper). of the jewelry]. [Acquisitive] [p]rescription began to run

when plaintiffs were first denied delivery of this jewelry in

June 1942, after the death of their brother, Sebastian Patout,

and this suit was filed in December 1942, about six months

later. 23

In thus rejecting the defendants' plea of liberative prescription,

the Louisiana Supreme Court clearly recognized that the concepts of

precarious possession and acquisitive prescription applied to this

action for the recovery of movable property, even though the court

did not use these terms of art. The facts in F aison are closely

analogous to the situation before us today, and the holding of the

Louisiana Supreme Court in Faison —the most recent pronouncement by

the highest court of the state—is instru ctive despite being

non-binding due to the inapplicability of the common law doctrine

of stare decisis. 24

In sum, even though some decisions of the Lou isiana Supreme

Court have treate d actions for recovery of movables as personal

(delictual and occasionally as quasi-contractual), other decisions

of that court have found that such actions are properly considered

to assert claims of ownership and therefore are subject only to

acquisitive prescription. Despite its age, P atout is still the

most recent Louisiana Supreme Court pronouncement on point, and it

so held. But regardless whether the most recent pronouncement of

the Louisiana Supreme Court supports our analysis of the Civil Codeand that of Professor Yiannopoulos, the re is simply no

jurisprudence constante on th e question. It follows, then, that

our Erie -bound decision to follow the plain wording and

indisputable structure of the Louisia na Civil Code and Professor

Yiannopoulos' analysis is either supported by or at least does no

violence to Louisiana's jurisprudence as a secondary source of law.

To the extent that our decision today may constitute an " Erie

guess," we take additional comfort in the observation that almost

60 years have passed since the Louisiana Supreme Court last applied

liberative prescription to actions claiming ownership or possession

of movable property—a span of years attributable at least in part,

we assume, to the broad reliance in recent decades on Professor

Yiannopoulos' doctrinal work on this subject.

As SongByrd's "Petition in Revindication" sought recognition

of its purported own ership interest in the Baton Rouge master

recordings and recovery of possession of those recordings, and only

incidentally sought damages resulting from Bearsville's

co ntravention of SongByrd's alleged ownership interest, we hold

that, as a fundamental matter of Louisiana property law, SongByrd's

action is not subject to liberative prescription.

D. Termination of Precarious Possession and Actual Notice

This foundational holding does not end our analysis in the

instant case, however. In addition to its failure to characterize

SongByrd's suit as a real action and its concomitant error in

applying the rules of liberative prescription, the district court

also missed the mark in its treatment of SongByrd's assertion that

Bearsville was and is only a precarious possessor. To situate the25 Id. § 354, at 687.

26 La.Civ.Code art. 3437.

27 La.Civ.Code art. 3438. Conversely, "[o]ne is presumed to

intend to possess as owner unless he began to possess in the name

of and for another." La.Civ.Code art. 3427 (emphasis added).

This presumption set forth in article 3427 in favor of a person

who exercises factual authority does not arise, however, when

"there is proof that the possession was precarious at its

inception." Yiannopoulos, supra, § 370, at 617. concept of precarious possession in its proper Civilian context, we

again return to basics. As Professor Yiannopoulos explains, a

defendant in possession (such as Bearsville) may defend a

revendicatory action for the recovery of movable property by (1)

asserting some right, be it personal or real, to possess the

movable, or (2) claiming that he is in fact the owner of the

movable by virtue of, e.g., a transfer from the owner, acquisitive

prescription, or some other mode of acquiring ownership. 25 No such

defenses have been proffered by Bearsville; but if, on remand, it

should assert the defense of acquisitive prescription, the district

court will have to address SongByrd's contention—made both in its

original petition and in opposition to Bearsville's motion to

dismiss—that Bearsville is and always has been nothing more than a

precarious possessor.

Under the Civil Code, the concept of "precarious possession"

is defined within Title XXIII of Book III, "Of the Different Modes

of Acquiring the Ownership of Things," as "the exercise of

possession over a thing with the permission of or on behalf of the

owner or possessor." 26 A precarious possessor is presumed to

possess for another, 27 but precarious possession may be terminated

or converted to possession on one's own behalf in either of two28 La.Civ.Code art. 3439.

29 Id. (emphasis added). Another respected Louisiana

commentator has observed (1) that the "actual notice" required to

convert precarious possession to adverse possession constitutes a

more stringent standard than was needed prior to the 1983

revision of Title XXIII of Book III of the Louisiana Civil Code

dealing with occupancy, possession and acquisitive prescription,

Symeon Symeonides, Property, 46 La.L.Rev. 655, 680 (1986), and

(2) that the "overt and unambiguous acts sufficient to give

notice" standard imposed on co-owners is "a less exacting burden

of proof" than the "actual notice" standard imposed on other

precarious possessors. Symeon Symeonides, One Hundred Footnotes

to the New Law of Possession and Acquisitive Prescription, 44

La.L.Rev. 69, 86 (1983). specific ways. First, a precarious possessor who is a co-owner (or

his universal successor) may terminate his precarious possession,

and thus begin to possess for himself alone, only when he

demonstrates his intent to posses s for himself by "overt and

unambiguous acts sufficient to give notic e to his co-owner." 2 8

Second, a precarious possessor who is not a co-owner is held to a

higher standard and only "commences to possess for himself when he

gives actual notice of this intent to the person on whose behalf he

is possessing." 29

In the instant case, then, should Bearsville assert that it

acquired ownership of the master recordings by acquisitive

presc ription of either three or ten years, pursuant to Louisiana

Civil Code Articles 3489-91, it will have to overcome SongByrd's

assertion, so far supported by Quint Davis' affidavit, that Davis

and Dinkins delivered the master recordings to Bearsville intending

only for Bearsville to possess the tapes precariously. Bearsville

may, of course, assert that (1) it was never a precarious

possessor, or (2) even if it was a precarious possessor initially,

at some point it terminated its precarious possession and began to30 The two cases cited by Bearsville which held that mere

silence or passivity is insufficient to bring the doctrine of

contra non valentum into play are clearly inapposite as that

doctrine concerns the interruption of liberative prescription of

personal actions not acquisitive prescription in the context of

real actions. See Cyr v. Louisiana Intrastate Gas Corp., 273

So.2d 694, 697-98 (La.Ct.App. 1st Cir.1973); Colley v. Canal

Bank & Trust Co., 159 F.2d 153, 154 (5th Cir.1947). possess for itself. Either way, Bearsville will have the burden of

proving facts sufficient to support such a defense.

It is the non-co-owner context in which we finally address

the district court's alternative—and, strictly speaking,

premature—holding that Bearsville's failure to respond to Dinkins'

letters requesting return of the tapes in 1975 and its later

licensing agreeme nts with Rounder and Rhino, constituted "actual

notice" sufficient to convert Bearsville's precarious possession as

a matter of law. This ruling, we observe, is clearly inconsistent

with Louisiana law.

We have not been able to locate (and Bearsville has not cited

to us) a single Louisiana case that supports the novel proposition

that alone either (1) a minimal, apparently clandestine action—such

as entering into a contractual agreement with a third party to

enjoy the fruits of a movable without directly informing the owner

of the movable of that agreement—or (2) mere inaction in the face

of a request for a return of the movable to its owner, can somehow

constitute "actual notice" for purposes of terminating precarious

p ossession of the movable of a non-co-owner. 3 0 To the contrary,

recent Louisiana cases concerning termination of precarious

possession reflect that the notice burden imposed on precarious31 See e.g., Robin v. Finley, 597 So.2d 178, 180 (La.Ct.App.

3rd Cir.1992) ("actual notice" sufficient to begin acquisitive

prescription not given until precarious possessors filed a

possessory action); Satsuma Pentecostal Church v. Harris, 563

So.2d 1247, 1249 (La.Ct.App. 1st Cir.1990) (church that was a

precarious possessor did not begin to possess for itself for

purposes of instituting a possessory action under La.Code Civ.

Proc. art. 3658(2) until church's representative voiced objection

to owner's proposed sale of property and clearly notified owner

that church claimed ownership); Morris v. Sonnier, 546 So.2d

1296, 1300 (La.Ct.App. 1st Cir.1989) (acts of corporeal

possession are insufficient to constitute "actual notice" for

precarious possessors who began possession as lessees); Feazel

v. Howard, 511 So.2d 1306, 1308-09 (Ct.App. 2nd Cir.), writ

denied, 514 So.2d 456 (La.1987) (precarious possessor did not

give "actual notice" to owner that he intended to possess for

himself as he admitted at trial that he never made an assertion

of ownership of disputed tract).

32 Hammond v. Averett, 415 So.2d 226, 227 (La.Ct.App. 2nd

Cir.1982) (citations omitted). possessors in such instances is much more stringent. 31 As one court

put it,

a possessor whose pos session begins other than as an owner

must do something to make generally known that he has changed

his intent and he must prove specifically when he manifested

to others his intent to possess as owner. Continued physical

possession alone does n ot suffice to rebut the presumption

that the posses sion remains precarious. The character and

notoriety of the possession must be sufficient to inform the

public and the record owners of the possession as owner. 32

We therefore conclude that actual notice sufficient to convert or

terminate precarious possession cannot be based solely on either

minimal and apparently clandestine actions such as those described

above or on merely standing mute in the face of a direct inquiry or

request for return of the property.

This is not to s ay, of course, that the defendant may not

refer to these facts in a subsequent motion for summary judgment or

a full evidentiary hearing should Bearsville eventually assert that

at some point it began to possess the master recordings for itselfand gave SongByrd's predecessors-in-interest actual notice of such

an intention. Doubtless these facts and others will have to be

considered by the trier of fact in resolving such an acquisitive

prescription defense in general and the actual notice issue in

particular. We simply hold today that the limited evidence

presented to the district court on Bearsville's motion to

dismiss-cum-summary judgment, on the ground of liberative

prescription, was insufficient to determine that Bearsville

satisfied the high burden of proof necessary to establish that it

gave SongByrd's predecessors-in-interest actual notice of its

intent thenceforth to possess for itself, converting its precarious

possession to adverse possession for the purpose of a cquisitive

prescription.

III

CONCLUSION

For the reasons stated above, we reverse the district court's

grant of summary judgment in favor of Bearsville and remand the

case for further proceedings consistent with this opinion. On

r emand, the district court is free to address the perso nal

jurisdiction question that it pretermitted in its summary judgment

ruling, an issue which is not before us on this appeal and on which

we express no opinion at this juncture.

REVERSED and REMANDED.