STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-996
DAN S. COLLINS, CPL & ASSOCIATES, INC., ET AL.
VERSUS
FRANK A. GODCHAUX, III, ET AL.
********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, DOCKET NO. 84618 HONORABLE JULES D. EDWARDS, III, PRESIDING **********
SYLVIA R. COOKS JUDGE **********
Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.
REVERSED AND REMANDED.
J. Michael Veron Jere Jay Bice Alonzo P. Wilson Veron, Bice, Palermo & Wilson, LLC P.O. Box 2125 Lake Charles, LA 70602 (337) 310-1600 COUNSEL FOR PLAINTIFFS/APPELLANTS: Dan S. Collins, CPL & Associates, et al.
Anthony J. Fontana 210 N. Washington Street Abbeville, LA 70510 (337) 898-8332 COUNSEL FOR PLAINTIFFS/APPELLANTS: Dan S. Collins, CPL & Associates, et al. M. Taylor Darden Matthew J. Fantaci Carver, Darden, Kortezky, Tessier, Finn, Blossman & Areaux, L.L.C. 1100 Poydras Street, Suite 3100 New Orleans, LA 70163 (504) 585-3800 COUNSEL FOR DEFENDANTS/APPELLEES and THIRD PARTY PLAINTIFFS: Frank A. Godchaux, III, et al.
Gerald F. Slattery, Jr. Emile J. Dreuil, III Slattery, Marino & Roberts 1100 Poydras Street, Suite 1800 New Orleans, LA 70163 (504) 585-7800 COUNSEL FOR AMICUS CURIAE: American Association of Professional Landmen COOKS, Judge.
In this litigation between an independent petroleum landman and landowners
of a mineral field, the trial court granted the landowners’ motion for summary
judgment alleging the landman engaged in the unauthorized practice of law in
carrying out the duties set forth in a series of mineral consulting agreements
between the parties. The landowners’ reconventional demand seeking return of all
monies paid in the past under the mineral consulting agreements to the landman
was dismissed on the grounds that the landowners had “unclean hands” in crafting
the mineral consulting agreements. Lastly, the trial court granted the landowners’
motion in limine seeking to exclude any evidence pertaining to damages suffered
due to breach of the contract between the parties. Both parties have appealed the
trial court’s judgment.
FACTS AND PROCEDURAL HISTORY
Dan Collins has worked as a professional landman for over thirty years.
He is a Certified Professional Landman as determined by the American
Association of Professional Landmen (AAPL). In 1994, Collins entered into a
Mineral Consulting Agreement (hereafter MCA) with Frank and Charles
Godchaux to manage their mineral interests in the Live Oak Field located in
Vermilion Parish, Louisiana. There were a series of MCAs which extended over
an approximate ten-year period maintaining the parties’ relationship. The MCAs
all set forth that Collins would receive no remuneration unless his efforts resulted
in some profit for the Godchauxs. Collins worked on a contingency fee basis, and
if he were successful in securing a profit for the Godchauxs, Collins would receive
a fee consisting of a royalty interest and a percentage of any cash payments they
received.
Prior to signing the initial MCA, it was reviewed by the Godchauxs’
attorney, Silas Coper. It should be noted that Mr. Cooper was counsel of record on both Louisiana Supreme Court cases which have examined the issue of landmen
and the unauthorized practice of law, Placid Oil Co. v. Taylor, 306 So.2d 664 (La.
1975) and Crawford v. Deshotels, 359 So.2d 118 (La. 1978). It cannot be
reasonably suggested here that Mr. Cooper was not familiar with the issues
involved with landmen and the unauthorized practice of law and whether the MCA
he reviewed contractually obligated the parties to perform prohibited activities.
In 2004, after Collins had worked the Live Oak Field for ten years under the
MCAs, the Godchauxs entered into a settlement with the lessees of the Live Oak
Field, which resulted in five new mineral leases and the amendment of a lease that
had been executed by the Godchauxs in 1952. As a result of the new leases and
amendment, the Godchauxs received significantly more favorable terms than they
previously had, including significant increases in royalties payable on certain
production.
Under the MCA, Collins contended he was entitled to a 2% overriding
royalty interest in all of the new leases and amendment. The Godchauxs disagreed,
believing Collins was only entitled to a 1% override on the new leases and nothing
on the amendment to the 1952 lease. Based on their belief, the Godchauxs caused
assignments of a 1% overriding royalty interest to be drafted on the five new leases
that resulted from the 2004 settlement. The Godchauxs did not prepare any
assignment for the amendment to the 1952 lease, asserting the 1994 MCA
specifically excluded the 1952 lease from its terms and conditions. Thereafter, the
Godchauxs executed each assignment and filed them for registry in the official
records.
On February 21, 2006, Collins filed suit seeking to compel the Godchauxs to
pay him the 2% overriding royalty interest he claimed he was due as a result of the
2004 settlement. Collins also claimed he was entitled to a 2% overriding royalty
interest in the amendment to the 1952 lease. Originally, the Godchauxs answered
2 the suit claiming the contract with Collins should be reformed to eliminate their
obligation to pay the royalties owed because they signed it in error.
In March, 2008, the Godchauxs reconvened against Collins seeking to have
the MCAs declared null and void on the grounds that they authorized Collins, a
non-lawyer, to engage in the unauthorized practice of law; and that, in performing
his work under the MCAs, Collins did engage in the unauthorized practice of law.
Based upon its belief that the MCAs were null and void, which under La.Civ.Code
art. 2033 means they are “deemed never to have existed,” the Godchauxs sought to
be restored to the situation that existed before the contracts were made, which
would require Collins to return all royalty assignments and monies previously
received by him.
On February 14, 2011, the Godchauxs filed a motion for partial summary
judgment in support of their reconventional demand against Collins, based on its
assertion that Collins’ work under the MCAs was null and void because it
constituted an “unlawful attempt to engage a non-lawyer in the unauthorized
practice of law.”
On March 9, 2011, Collins filed a cross-motion for summary judgment
seeking the recovery of overriding royalties under the MCAs and dismissal of the
Godchauxs’ reconventional demand for return of the previously made payments on
the grounds the contract did not call for the unlawful practice of law.
The Godchauxs, in the event the issue of Collins’ damages regarding the
Godchauxs’ alleged breach of the MCAs proceeds to trial, filed a motion in limine
seeking to exclude testimony Collins intended to introduce from principals of an
oil company that it would have purchased Collins’ royalty interest for
approximately $5 million. They asserted this testimony was mere speculation and
there was never a bona fide offer to purchase Collins’ royalty interest.
3 The trial court granted in part the Godchauxs’ partial summary judgment,
dismissing Collins’ claim for recovery of royalties on the grounds that the
agreement was void because Collins was “in fact, engaged in the unlawful practice
of law.” However, the trial court also held that Collins did not have to return prior
monies paid because the Godchauxs had “unclean hands” because they crafted the
MCAs and participated with Collins in the unlawful conduct. Based on its finding
that Collins engaged in the unlawful practice of law, the trial court denied Collins’
cross-motion for summary judgment. The trial court also granted the Godchauxs’
motion in limine, holding that, if this Court reverses the grant of summary
judgment that Collins engaged in the unauthorized practice of law and remands the
matter for trial on the issue of damages, Collins will not be allowed to present any
testimony as to the possible sale of the disputed royalty interest to a third party.
Both Collins and the Godchauxs timely filed petitions for devolutive appeal,
which the trial court granted.
ANALYSIS
An appellate court reviews a grant of summary judgment de novo, applying
the same standards as would a trial court. Schroeder v. Bd. of Sup’rs. of La. State
Univ., 591 So.2d 342 (La.1991). Summary judgment is governed by La.Code
Civ.P. arts. 966 and 967. Article 966 provides that while the burden of proving
entitlement to summary judgment rests with the mover, if the mover will not bear
the burden of proof at trial on the matter 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 facts of the adverse party’s claim, action or defense, but rather
to point out to the court that there is an absence of factual support for one or more
elements essential to the adverse party’s claim, action or defense. Thereafter, if the
adverse party fails to produce factual support sufficient to establish that he will be
4 able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of
material fact. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.
I. Unauthorized Practice of Law
Louisiana prohibits a non-licensed attorney from practicing law or from
rendering legal services. La.R.S. 37:213. The “practice of law’ is defined in
La.R.S. 37:212 to include:
A. The practice of law means and includes:
(1) In a representative capacity, the appearance as an advocate, or the drawing of papers, pleadings or documents, or the performance of any act in connection with pending or prospective proceedings before any court of record in this state; or
(2) For a consideration, reward, or pecuniary benefit, present or anticipated, direct or indirect;
(a) The advising or counseling of another as to secular law;
(b) In behalf of another, the drawing or procuring, or the assisting in the drawing or procuring of a paper, document, or instrument affecting or relating to secular rights;
(c) The doing of any act, in behalf of another, tending to obtain or secure for the other the prevention or the redress of a wrong or the enforcement or establishment of a right; or
(d) Certifying or giving opinions as to title to immovable property or any interest therein or as to the rank or priority or validity of a lien, privilege or mortgage as well as the preparation of acts of sale, mortgages, credit sales or any acts or other documents passing titles to or encumbering immovable property.
The Godchauxs alleged the various MCAs required Collins to engage in acts
which required the practice of law. Specifically, they asserted these acts included
advising the Godchauxs as to their legal rights in various matters, negotiating
damage claims and releases for the Godchauxs’ property, asserting the legal rights
of the Godchauxs, engaging in settlement negotiations on behalf of the Godchauxs
on a contingency fee basis, and furnishing attorneys.
The Louisiana Supreme Court, in two cases over thirty years old, addressed
the issue of the unauthorized practice of law by landmen. In Placid Oil, 306 So.2d
5 666 the court first addressed allegations involving a landman allegedly engaging in
the unauthorized practice of law. In Placid Oil, the landman, who was a non-
lawyer, entered into a contract with the heirs of former landowners concerning title
to a certain piece of property. The landman agreed “to remove all clouds from the
said titles, and [agreed] to use all diligence in his efforts to do so, AT HIS SOLE
EXPENSE, and the decision as to the method of procedure, and whether or not to
institute litigation shall be left entirely to the discretion of [the landman]. . .” Id. at
FN1. In return, the landman was to receive mineral rights to the property. A
subsequent mineral lessee claimed that the transfer of the mineral rights to the
landman was an absolute nullity because it was consideration for the unauthorized
practice of law. The supreme court rejected that argument, stating:
. . . no evidence at all was introduced to show that, by reason of the contract, [the landman] had actually performed any prohibited legal services. Nor can we say, for instance, that services performed by removing clouds from titles, such as locating heirs or having adverse claimants sign quitclaims prepared by lawyers, amount by themselves to the practice of law, so as to exclude non-lawyers from the useful functions historically performed by landmen.
Id., at 666.
A few years later in Crawford, 359 So.2d 118, the Louisiana Supreme Court
once again addressed a claim that a landman had engaged in the unauthorized
practice of law. In that case, Crawford, an independent landman, contacted an heir
after researching the title to a tract of land and discovering that the heir had been
denied her legitime of an interest in the property. Upon contacting the heir,
Crawford entered into an agreement with the heir whereby, in consideration for the
necessary work and expense required for perfecting the title, the heir would convey
a one-half mineral interest to Crawford. To that end, Crawford secured quitclaim
deeds, which he personally prepared, conveying to the heir her interest in the
property.
6 The heir later sued Crawford for dissolution of the contract, contending
Crawford’s actions constituted the unauthorized practice of law in violation of
La.R.S. 37:213. In finding in favor of Crawford, the Louisiana Supreme Court
quoted from the appellate court opinion, which relied on the opinion in Placid Oil,
and read, in pertinent part:
Mr. Crawford agreed to undertake “the necessary work and expense in perfecting the title, of whatever undivided interest grantor may have legal title to, into grantor and causing the said title to grantor’s interest to be properly reflected in the Conveyance Records of the Parish of Vermilion.” The evidence shows that pursuant to this agreement Crawford obtained quitclaim deeds, which he personally prepared, conveying to Mrs. McDaniel an undivided one-sixth interest in the property. It was not necessary for Mr. Crawford to employ an attorney or to file any proceedings in court.
A very similar issue was presented in the recent case of Placid Oil Company v. Taylor, 306 So.2d 664 (La.S.Ct.1975) where a landman, a non-lawyer, agreed to furnish services to remove clouds from the titles of landowners in consideration of an interest in the property. The court found that regardless of whether the services to be performed by the landman under the contract constituted the practice of law, the evidence did not show that the services actually performed were prohibited legal services. The court stated:
“Nor can we say, for instance, that services performed by removing clouds from titles, such as locating heirs or having adverse claimants sign quitclaims prepared by lawyers, amount by themselves to the practice of law, so as to exclude non-lawyers from the useful functions historically performed by landmen.”
In its decision in Placid, the Supreme Court cited with approval the case of Strange v. Robinson, La.App., 189 So. 338 (1939) which involved facts very similar to the present case. The court in Robinson held that the services performed by the landman did not constitute the prohibited practice of law. 351 So.2d at 297-98.
Under these authorities, the services performed by Crawford in the present case clearly did not constitute the prohibited practice of law. 351 So.2d at 297-98.
The supreme court concluded that Crawford “did nothing more than to perform the
services historically rendered by landman.” Id. at 121.
Significantly, the Crawford court cited with approval a definition of the term
landman in its opinion. It defined a “landman” as “[a]n employee of an oil
7 company whose primary duties are the management of the company’s relations
with its landowners. Such duties include the securing of oil and gas leases, lease
amendments, pooling and unitization agreements and instruments necessary for
curing title defects from landowners.” Crawford, 359 So.2d at FN1 (emphasis
added).
It appears the trial court interpreted the definition as setting forth an
exclusive list of activities a landman could legally perform. We do not agree. The
word “include” clearly indicates the activities set forth in the definition are not
exclusive. The facts of Crawford state the landman undertook “the necessary work
and expense in perfecting the title” and personally prepared the quitclaim deeds.
Id. at 121. Moreover, as noted by Collins, the Crawford court’s approval of Placid
Oil and Strange v. Robinson, La.App., 189 So. 338 (1939), cases in which the
landmen’s activities were not limited to the activities listed in the Crawford
definition of landman, indicates the Court did not consider that listing of activities
as exclusive. Instead, it is clear the supreme court intended to exempt all activities
historically performed by landmen from the definition of the unauthorized practice
of law.
While there have been no cases in Louisiana since Crawford which have
examined the specific issue of whether a landman has engaged in the unauthorized
practice of law, the jurisprudence is replete with cases where landmen have
engaged in a myriad of duties beyond that set forth in the definition provided in
Crawford.
In Marin v. Exxon Mobil Corp., 09-2368, 09-2371 (La. 10/19/10), 48 So.3d
234, a landman engaged in negotiations on his clients’ behalf for site clean-up. In
Freeport-McMoran, Inc. v. Transcontinental Gas Pipe Line Corp., 04-31 (La.App.
1 Cir. 10/14/05), 924 So.2d 207, writ denied, 05-2358 (La. 3/31/06), 925 So.2d
1256, a landman participated in settlement negotiations in a take-or-pay dispute.
8 In Denbury Onshore, L.L.C. v. Pucheu, 08-1210 (La.App. 3 Cir. 3/11/09), 6 So.3d
386, one landman participated in negotiating an escrow agreement and another
landman participated in negotiations on a mineral lease. Adams v. JPD Energy
Inc., 45,420 (La.App. 2 Cir. 8/11/10), 46 So.3d 751, writ denied, 10-2052
(La.11/12/10), 49 So.3d 892, involved an independent landman company which
was retained to obtain mineral leases. The case of Cree Oil Co. v. Home Ins. Co.,
94-1219, p. 3 (La.App. 3 Cir. 3/8/95), 653 So.2d 620, 623, writ denied, 95-1554
(La.9/29/95), 660 So.2d 875, involved a petroleum landman who “acquired and
sold oil and gas leases and put exploratory drilling deals together.” In Win Oil Co.,
Inc. v. UPG, Inc., 509 So.2d 1023 (La.App. 2 Cir.1987), a landman engaged in
performing title research and rendering opinions on the ownership of mineral
rights. In St. Romain v. Midas Exploration, Inc., 430 So.2d 1354, 1355 (La.App. 3
Cir. 1983), a landman, “[a]fter protracted preliminary negotiations, . . . agreed to a
mineral lease . . . [and] prepared [the] mineral lease.” Many of these cases involve
acts outside of those listed in the definition of landman provided in Crawford, and
are examples of those acts which have been historically performed by landmen.
Whether a particular activity is one that has been historically performed by
landmen is a question of fact. Collins avers that the only competent summary
judgment evidence on this issue was presented by him in his statement of
uncontested material facts. He asserted all the activities performed by him in
representing the Godchauxs were activities historically performed by landmen. No
evidence to contradict this was presented by the Godchauxs, and counsel for the
Godchauxs acknowledged below that “there are no disputed issues of fact.”
Moreover, we find unpersuasive the examples provided by the Godchauxs as
to Collins’ supposed acts of “practicing law.” The Godchauxs argue a memo
written by Collins on March 20, 2003 constituted the unauthorized practice of law.
In this memo, Collins recommended that the Godchauxs hire a lawyer to pursue
9 issues identified by him and ultimately resolved by the 2004 settlement. In the
memo Collins listed potential lease violations and noted his concern that other oil
companies might attempt to avoid property clean-up by transferring their
operations to smaller companies with limited resources. Collins suggested to the
Godchauxs that these factors indicated it was time to hire an attorney to protect
themselves. This, while arguably good advice, falls woefully short of the practice
of law. As Collins notes in his brief, to liken the writing of this memo to practicing
law, would be akin to believing that advising a friend he looks ill and should see a
doctor is engaging in the practice of medicine.
The Godchauxs also argue a March 1, 2002 e-mail from Collins to the
daughter of Frank Godchaux, requesting photographs of neighboring land to aid
him in examining possible erosion, damage and land loss because he believed a
prescription issue could be looming with former operators. The Godchauxs argue
this request for photographs constitutes the practice of law. We disagree, and note
Collins was simply asking for photographs and did not give any advice relating to
prescription.
The Godchauxs also alleged the MCAs called for the unauthorized practice
of law because they provided for Collins to be compensated on a contingency
basis. To find merit in this assertion, we would have to find any contract, such as a
contract with a realtor, which calls for payment based on a contingency
arrangement is void because it constitutes the unauthorized practice of law. This
ignores the fact that the supreme court in Crawford upheld a contingency fee
contract between the landowner and landman. Such a fee arrangement is standard
practice in contracts between landowners and landmen.
The Godchauxs have failed to provide any evidence or jurisprudence
indicating that any of the services provided by Collins under the MCAs fell outside
the scope of services historically provided by landmen. To the contrary, Collins
10 provided affidavits of another landman with over thirty years experience and an
official with the Louisiana Department of Natural Resources who supervised
landmen, who averred that the services Collins provided under the MCAs were
those historically provided by landmen. Although the Godchauxs refer to these
affidavits as “self-serving,” they provide no valid legal basis to disregard them.
Collins also provided numerous cases, cited above, wherein landmen performed
many of the very activities the Godchauxs alleged constituted the unauthorized
practice of law.
The Godchauxs attempt to argue independent landmen, like Collins, are
different from landmen employed by an oil company, and are more limited in the
acts they can perform. They argue this distinction is relevant because persons are
entitled to attend to their own business, and as a legal fiction, a corporation can act
only through its employees; thus, corporate employees can practice law on behalf
of the corporation. The Godchauxs cite only one case in support of this argument,
Title Guaranty Co. v. Denver Bar Ass’n, 312 P.2d 1011 (Colo. 1957), a Colorado
case over fifty years old, which does not specifically reference landmen. We note
the Godchauxs attempt to summarily dismiss references to current Texas and
Oklahoma law provided by the AAPL in its amicus brief, finding what “those
states choose to do regarding the tension between landman activities and their
respective statutes prohibiting the unlicensed practice of law is totally irrelevant in
this proceeding.” The suggestion that we should do the same is disingenuous at
best, particularly considering the Godchauxs’ earlier insistence that this court
should follow a 55 year old case in upholding their position.
In any event, there has been nothing presented to support the position that
company landmen provide materially different services than those rendered by
independent landmen. We find unpersuasive the Godchauxs’ argument that what
11 services are permissible for a company landman to perform can rise to the level of
a crime when performed by an independent landman, such as Collins.
In conclusion, the Louisiana Supreme Court addressed the issue raised by
the Godchauxs over three decades ago in Placid Oil and Crawford. The court in
those cases made it clear that activities historically performed by landmen are
exempted from the definition of the unauthorized practice of law. As noted above,
the Godchauxs failed to present evidence to contradict Collins’ evidence that all
the activities performed under the MCAs were activities historically performed by
landmen.
We do not find the stipulated facts, evidence, and other responses in the
record presented below in support of the motion for summary judgment filed by
the Godchauxs were sufficient to establish as a matter of law that Collins engaged
in the unauthorized practice of law. Thus, the trial court erred in granting the
Godchauxs’ motion for summary judgment and we reverse that decision.
II. Dismissal of the Godchauxs’ Reconventional Demand
The Godchauxs filed a Reconventional Demand against Collins seeking a
return of all royalty assignments and monies previously received by him for
services performed under the MCAs. The Reconventional Demand was based on
the alleged nullity of the MCAs. The trial court held the Godchauxs could “not
recover on the Reconventional Demand on the grounds that they have unclean
hands in procuring Collins to commit a crime.”
We find the trial court’s dismissal of the Godchauxs’ reconventional demand
was premature at this point. There were grounds relied upon by the Godchauxs in
their reconventional demand other than the assertion that Collins engaged in the
unauthorized practice of law. Therefore, we reverse the dismissal of the
reconventional demand and remand for trial on that issue.
12 III. Grant of the Motion in Limine
In his petition, Collins asserted a damage claim against the Godchauxs that
they breached the MCA by preventing him from selling his overriding royalty
interest to a willing purchaser, D&D Cajun Ventures, LLC (hereafter D&D).
Collins intended to introduce testimony from principals of D&D that the company
would have purchased Collins’ overriding royalty interest for approximately $5
million. The Godchauxs filed a motion in limine in the trial court seeking to
exclude this evidence should the issue of Collins’ damages go to the jury. The trial
court granted the motion in limine, holding that, if this Court reverses the grant of
summary judgment that Collins engaged in the unauthorized practice of law and
remands the matter for trial on damages, Collins will not be allowed to present any
evidence to show the profits he was denied as a result of the Godchauxs’ breach.
The trial court indicated such evidence would just be “speculation.”
Collins maintains under the provisions of his agreement with the Godchauxs,
he was entitled to receive a 2% royalty interest on certain oil and gas production.
According to Collins, that “royalty interest could have been (and would have been)
sold to D&D Cajun Ventures, LLC for $5 million.” Collins contends under the
law this is the appropriate measure of the damages he suffered due to the
Godchauxs’ refusal to transfer the 2% royalty interest.
Collins took the depositions of Don Fisher and Daniel Adams, who were
principals of D&D, to establish D&D was interested in acquiring mineral interests
in the Live Oak Field, and that had the Godchauxs transferred to Collins the agreed
upon 2% royalty interest, D&D would be interested in purchasing it for
approximately $5 million.
The Godchauxs argue that no actual offer, written or otherwise, was ever
made to purchase Collins’ royalty interest. The Godchauxs characterize the “gist
of D&D’s testimony, through one of its principals, was only that if Collins had
13 offered to sell the 2% royalty that he claims he is owed, D&D would have been
willing and able to purchase it for between $4.8 and $5.2 million dollars.”
Louisiana Civil Code Article 1995 states “[d]amages are measured by the
loss sustained by the obligee and the profit of which he has been deprived.”
(Emphasis added.) As we noted in Amoco Production Co. v. Texaco, Inc., 02-240,
p. 13 (La.App. 3 Cir. 1/29/03), 838 So.2d 821, 836, writs denied, 03-1102, 03-1104
(La. 6/6/03), 845 So.2d 1096, “[t]he plain language of this article requires that
damages include whatever profit the plaintiff may have lost due to the inaction of
the defendant.” The Louisiana Supreme Court stated in Gibbs Const. Co., Inc. v.
Thomas, 500 So.2d 764, 770 (La.1987), “t]he proper measure of damages ... is ...
the amount necessary to place [the plaintiff] in the same position he would have
been in had [the defendant] completely fulfilled [its obligation].”
The Godchauxs argue the law is “well-settled that offers to purchase or sell
are not admissible as evidence for purposes of proving the property’s value.”
However, as Collins notes, the cases cited by the Godchauxs deal with the proof of
the value of the property. Collins is not attempting to demonstrate the value of the
2% royalty interest he was owed by the Godchauxs, but rather the amount he lost
as a direct result of the Godchauxs’ breach of contract, i.e., the sum that will place
him in the same position as if the obligation had been fulfilled.
We find it unremarkable that no actual offer was ever made to buy or sell
the disputed royalty interest. Because the Godchauxs refused to transfer the
royalty interest to Collins, no actual offer could be made because Collins never
possessed the royalty interest. It would, therefore, be an injustice to prevent the
jury from hearing this evidence solely because no bona fide offer was made to buy
and/or sell the disputed royalty interest.
Much of the Godchauxs’ argument that the jury should not be allowed to
hear this evidence go to the credibility of the evidence rather than its admissibility.
14 Determining the credibility of the witnesses’ testimony is solely the province of the
factfinder, and is not a factor in its admissibility.
For the above reasons, we find the trial court erred in granting the motion in
limine excluding the testimony of Don Fisher, Daniel Adams and D&D Cajun
Ventures from the jury.
DECREE
For the foregoing reasons, the judgment of the trial court granting summary
judgment in favor of the Godchauxs is reversed. We reverse the trial court’s
dismissal of the Godchauxs’ Reconventional Demand and remand for trial on that
issue. Lastly, we reverse the trial court’s grant of the Godchauxs’ motion in
limine, and instruct the trial court on remand to allow testimony as to D&D Cajun
Ventures’ willingness to purchase the disputed royalty interest. All costs of this
appeal are assessed to Defendants, Frank and Charles Godchaux.