STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-1144
GRACE RANCH, LLC
VERSUS
BP AMERICA PRODUCTION COMPANY, ET AL.
**********
APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. 705-11 HONORABLE J. BYRON HEBERT, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and D. Kent Savoie, Judges.
Thibodeaux, Chief Judge, concurs in the result reached.
AFFIRMED. Donald T. Carmouche Victor L. Marcello John H. Carmouche William R. Coenen, III Brian T. Carmouche Todd J. Wimberley Ross J. Donnes D. Adele Owen Leah C. Poole Caroline H. Martin Christopher D. Martin Talbot, Carmouche & Marcello 17405 Perkins Road Baton Rouge, Louisiana 70810 (225) 400-9991 Counsel For Plaintiff/Appellant: Grace Ranch, LLC
Chad E. Mudd David P. Bruchhaus M. Keith Prudhomme Matthew P. Keating Mudd & Bruchhaus, L.L.C. 410 E. College Street Lake Charles, Louisiana 70605 (337) 562-2391 Counsel for Plaintiff/Appellant: Grace Ranch, LLC
Carl Duhon Ike Huval Duhon Law Firm Post Office Box 52566 Lafayette, Louisiana 70505 (337) 237-9868 COUNSEL FOR DEFENDANTS/APPELLEES: Shirley Poirier Van Way, in her capacity as Independent Testamentary Executor of the Succession of J.P. Van Way
George Arceneaux, III Penny L. Malbrew Court VanTassell Brittan J. Bush Liskow & Lewis Post Office Box 52008 Lafayette, Louisiana 70505 (337) 232-7424 Counsel for Defendant/Appellee: BP America Production Company Mark L. McNamara Kelly B. Becker Kathryn Z. Gonski Liskow & Lewis One Shell Square 701 Poydras Street, Suite 5000 New Orleans, Louisiana 70139-5099 (504) 581-7979 Counsel for Defendant/Appellee: BP America Production Company
R. Keith Jarrett Kelly T. Scalise Liskow & Lewis One Shell Square 701 Poydras Street, Suite 5000 New Orleans, Louisiana 70139 (504) 581-7979 Counsel for Defendant/Appellee: BHP Billiton Petroleum (Americas) Inc. KEATY, Judge.
In this oilfield legacy litigation, Plaintiff appeals the trial court’s judgment
granting motions for summary judgment and an exception of no right of action in
favor of Defendants. For the following reasons, the trial court’s judgment is
affirmed.
FACTS & PROCEDURAL HISTORY
This mineral law case involves forty acres of immovable property located in
Jefferson Davis Parish of which Grace Ranch, LLC (“Grace Ranch”) is the owner.
On October 10, 2011, Grace Ranch filed suit in contract and tort for contamination
of its property resulting from the historical oil and gas exploration and production
activities of multiple defendants, including J.P. Van Way (“JPVW”), BP America
Production Company (“BP”), and BHP Billiton Petroleum (Americas), Inc.
(“BHP”) (collectively “Defendants”), pursuant to valid mineral leases.
The forty acres at issue was part of an approximate 166-acre tract (“subject
tract”) of immovable property owned by Ellen M. Davies in 1915. In 1944,
Ms. Davies, as the lessor, executed a mineral lease with John J. Doyle, as the
lessee (“subject lease”). That same year, Doyle assigned the subject lease to
Stanolind Oil and Gas Company (“Stanolind”), BP’s predecessor. In 1957,
Stanolind merged into Pan American Petroleum Company (“Pan American”). In
1969, Pan American assigned the subject lease to Clinton Oil Company (“Clinton
Oil”), BHP’s predecessor. In 1972, Clinton Oil released all of its rights in the
subject lease except for the forty acres at issue in this matter. In 1976, Clinton Oil
changed its name to Energy Reserves Group, Inc. (“Energy”). In 1977, Energy
assigned the subject lease to Tommy Littlepage Oil Properties (“Littlepage Oil”).
In 1978, Littlepage Oil assigned half of its working interest in the subject lease to
Jack Williams Pipe and Supply Company. In 1984, Littlepage Oil assigned the remaining half of its working interest to JPVW. The subject lease expired in 1985
or 1986 due to non-production.
With respect to the surface and mineral ownership of the subject tract, it was
acquired by Ms. Davies’ heirs in 1971. In 1972, Ms. Davies’ heirs sold the same
to Donald J. Leblanc and Janet Sue Cagle Leblanc (“the Leblancs”), reserving for
themselves “all of the oil, gas and other mineral in, on or under said property,
together with the right of ingress and egress for the purpose of exercising this
mineral servitude.” In 1973 and 1974, the Leblancs sold the subject tract to
General Farms, Inc. (“General Farms”), subject to any outstanding servitudes and
reservations of minerals and leases. In 1995, General Farms acquired one hundred
percent of the minerals arising from the termination of the Davies servitude. In
1999, General Farms and the Leblancs transferred the subject tract to Daniel and
Jeralyn Ewing (“the Ewings”), reserving an undivided one-half interest in the
minerals. The Ewings subsequently sold the subject tract to Grace Ranch in 2006,
subject to their one-half interest in the minerals. Grace Ranch acquired one half of
the minerals in 2009 as a result of the expiration of General Farms’ one-half
mineral servitude. Grace Ranch acquired the other half of the minerals in 2016 as
a result of the expiration of the Ewings’ one-half mineral servitude.
In 2013, approximately two years after filing suit, Grace Ranch sought and
obtained assignments of rights in tort and contract from General Farms and the
Leblancs, or their heirs and assigns. On January 13, 2017, approximately four
years after obtaining the assignments, Grace Ranch filed its First Amended Petition
for Damages to assert its assigned claims. Defendants subsequently filed motions
for summary judgment, seeking dismissal of Grace Ranch’s suit. Additionally,
JPVW filed an Exception of No Right of Action, seeking dismissal on similar
grounds. The trial court heard the motions and exception on June 14, 2017, and 2 took them under advisement. Pursuant to the trial court’s written reasons for
judgment dated July 12, 2017, and its subsequent judgment dated September 16,
2017, the trial court granted the motions and exception and dismissed Grace
Ranch’s case with prejudice. Grace Ranch appealed.
On appeal, Grace Ranch asserts the following assignments of error:
1. The trial court committed error in dismissing the plaintiff’s claims on the basis of the subsequent purchaser rule.
2. The trial court committed error in failing to find that plaintiff has a right of action based on its assignments from prior owners of the surface and minerals.
3. The trial court committed error in finding that the assignment from General Farms to plaintiff was invalid based on General Farms’ affidavit of dissolution.
4. The trial court committed error in relying in part on prescription in dismissing the claims of the plaintiff because prescription was not at issue.
5. The trial court committed error in applying the jurisprudential subsequent purchaser rule under circumstances where the Civil Code and Mineral Code provide statutory support for plaintiff’s right of action.
STANDARD OF REVIEW
An appellate court utilizes the de novo standard of review when reviewing a
trial court’s judgment on a motion for summary judgment. Gray v. Am. Nat’l Prop.
& Cas. Co., 07-1670 (La. 2/26/08), 977 So.2d 839. The appellate court uses “the
same criteria that govern the trial court’s consideration of whether summary
judgment is appropriate, i.e., whether there is a genuine issue of material fact and
whether the mover is entitled to a judgment as a matter of law.” Id. at 844 (quoting
Supreme Servs. & Specialty Co., Inc. v. Greer, 06-1827, p. 4 (La. 5/22/07), 958
So.2d 634, 638). An appellate court must be mindful of the movant’s burdens of
proof required in a motion for summary judgment, which is found in La.Code
Civ.P. art. 966(D)(1) and provides: 3 The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
Additionally, “[t]he only documents that may be filed in support of or in
opposition to the motion are pleadings, memoranda, affidavits, depositions,
answers to interrogatories, certified medical records, written stipulations, and
admissions.” La.Code Civ.P. art. 966(A)(4).
Similarly, the standard of review regarding a “peremptory exception of no
cause of action is de novo because it raises a question of law.” Hebert v. Shelton,
08-1275, p. 3 (La.App. 3 Cir. 6/3/09), 11 So.3d 1197, 1201.
The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether [the] plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true.
Fink v. Bryant, 01-987, pp. 3-4 (La. 11/28/01), 801 So.2d 346, 348-49 (citations
omitted).
DISCUSSION
I. Subsequent Purchaser Rule
In its first assignment of error, Grace Ranch contends the trial court
committed error in dismissing its claims based upon the subsequent purchaser rule.
The subsequent purchaser rule is a jurisprudential rule which provides that a
4 property owner “has no right or actual interest in recovering from a third party for
damage which was inflicted on the property before his purchase, in the absence of
an assignment or subrogation of the rights belonging to the owner of the property
when the damage was inflicted.” Eagle Pipe & Supply, Inc. v. Amerada Hess
Corp., 10-2267, 10-2272, 10-2275, 10-2279, 10-2289, p. 8 (La. 10/25/11), 79
So.3d 246, 256-57.
Eagle Pipe involved a suit by landowners against oil and gas production
companies for damages arising from pre-purchase contamination of the property
pursuant to various surface leases. The supreme court reviewed Louisiana
jurisprudence along with Louisiana statutory law regarding property rights and
obligations as they apply to subsequent purchasers of property. Id. The supreme
court concluded that damage to property constitutes damage to a property owner’s
right of enjoyment in the property, which is a right of ownership and, consequently,
a real right in the property. Id. The supreme court noted that as a result, the
tortfeasor becomes obligated to the owner of the property whereby the owner is
granted a right to demand performance from the tortfeasor by seeking payment of
damages. Id. The supreme court further concluded that the right to sue is personal
and only enforceable by the property owner against the tortfeasor. Id. Thus, a
subsequent owner of the property has no right to sue the tortfeasor for the
previously inflicted damage absent an assignment or subrogation of the prior
owner’s personal right to sue for that damage. Id.
Grace Ranch contends that Eagle Pipe is inapplicable because it involved a
surface lease, whereas the present matter involves a mineral lease. Grace Ranch’s
argument is based upon the following language found in a footnote in Eagle Pipe,
79 So.3d at 281, n.80: “Moreover, because not factually relevant, we express no
5 opinion as to the applicability of our holding to fact situations involving mineral
leases or obligations arising out of the Mineral Code.”
Our review of post-Eagle Pipe jurisprudence reveals that the subsequent
purchaser rule has been applied to mineral leases. In Boone v. Conoco Phillips Co.,
13-1196 (La.App. 3 Cir. 5/7/14), 139 So.3d 1047, property owners brought an
action against a prior mineral rights lessee for contamination resulting from its oil
and gas drilling operations prior to the owners’ acquisition of the property. In
affirming the trial court’s grant of the lessee’s motion for summary judgment and
exception of prescription, this court in Boone, 139 So.3d at 1055, held that, “Under
the subsequent purchaser doctrine, [property owners] do not have a right of action
to sue the lessee for damages occurring prior to their acquisition of the property.”
In Bundrick v. Anadarko Petroleum Corp., 14-993 (La.App. 3 Cir. 3/4/15),
159 So.3d 1137, writ denied, 15-557 (La. 11/16/15), 184 So.3d 24, the owners of
interests in land brought an action against the former mineral lessees asserting
claims of negligence and breach of the obligation to restore the property to its
original condition, arising from the lessees’ oil and gas activities prior to the
owners’ acquisition of the land interests. In affirming the trial court’s grant of
summary judgment in favor of the former mineral lessees, this court in Bundrick,
159 So.3d at 1143, agreed that “the subsequent purchaser rule applies in matters
involving mineral leases.”
We agree with this circuit’s holding enunciated in Boone, 139 So.3d 1047,
and Bundrick, 159 So.3d 1137, despite Grace Ranch’s reference to Duck v. Hunt
Oil Co., 13-628, p. 6 (La.App. 3 Cir. 3/5/14), 134 So.3d 114, 119, writs denied, 14-
703, 14-709, 14-715, 14-735 (La. 6/13/14), 140 So.3d 1189, 1190, wherein this
court held that, “By its own terms, Eagle Pipe does not apply to situations
involving mineral leases.” We find that the foregoing language in Duck merely 6 recognizes that a mineral lease was not at issue in Eagle Pipe. That same language
does not equate to a finding that Eagle Pipe cannot apply to mineral leases. This is
apparent based upon the Duck, 134 So.3d at 119-20, court’s conclusion that “the
right to sue the defendants for damages under the Burrill and Farrar Leases did not
automatically pass to Duck when he acquired the land at issue.” This conclusion
mirrors the underlying principle in Eagle Pipe, i.e., the personal nature of a
property owner’s claim for damages. We further note that in Duck, 134 So.3d at
122, the plaintiff ultimately maintained a right of action to bring suit based upon
this court’s finding that “the Burrill and Farrar Leases [contained] a stipulation
pour autrui for the benefit of third parties.”
Other Louisiana circuits have also held that the subsequent purchaser rule
applies to mineral leases. In Global Marketing Solutions, LLC v. Blue Mill Farms,
Inc., 13-2132 (La.App. 1 Cir. 9/19/14), 153 So.3d 1209, writ denied, 14-2572 (La.
4/23/15), 173 So.3d 1164, the first circuit affirmed the trial court’s holding that the
subsequent purchaser rule prevents claims against former mineral lessees under
expired mineral leases. Likewise, in Walton v. Exxon Mobil Corp., 49,569, p. 14
(La.App. 2 Cir. 2/26/15), 162 So.3d 490, 498, writ denied, 15-569 (La. 11/16/15),
184 So.3d 25, the second circuit affirmed the trial court’s holding that the
subsequent purchaser rule precluded landowners from asserting tort claims for pre-
purchase damages against past and present mineral lessees and servitude owners
because such claims “were the personal rights and claims of the former surface
owners.”
Accordingly, Grace Ranch’s first assignment of error is without merit.
II. Right of Action
In its fifth assignment of error, Grace Ranch contends that the trial court
committed error in applying the jurisprudential subsequent purchaser rule under 7 circumstances where the Civil Code and Mineral Code provide statutory support
for its right of action. Grace Ranch alleges that a mineral lease creates a real right
by the landowner to sue for property damage that runs with the land. 1 Thus,
according to Grace Ranch, if a landowner grants a mineral lease, any and all
subsequent purchasers of that property inherit the right to sue the former mineral
lessee upon becoming the owner of that property. At trial, Grace Ranch’s
argument was dismissed by the trial court according to its reasons for judgment
which state that, “[Grace Ranch] made several arguments against the application of
the subsequent purchaser rule to the facts of this case, but their actions fail to
support their argument.”
In order to determine whether there is merit to Grace Ranch’s assignment of
error, we must review applicable Louisiana jurisprudential and statutory law. In
Bundrick, 159 So.3d at 1143, the plaintiff argued that “mineral rights are real rights
and, as such, pass with the property to a subsequent purchaser without the need for
specific assignment or subrogation.” In finding no merit to the plaintiff’s argument,
the third circuit noted: “[D]espite the language of La.R.S. 31:16 stating that
mineral rights are real rights, that status is reserved to the mineral lessee and not
the mineral lessor.” Id.
The classification of mineral rights as real rights with respect to a lessee was
succinctly explained by the U.S. District Court for the Western District of
Louisiana in Minvielle v. IMC Global Operations, Inc., 380 F.Supp.2d 755, 775
(W.D. La. 2004), as follows:
In the case of a mineral lease, the Mineral Code designates the right as a real one in order to protect the mineral lessee from losing his rights if the land is sold during the existence of the lease. This 1 In its brief, Grace Ranch argues that it is an “obvious fact that the mineral lease does not have to create a real right ‘in favor of’ the surface owner for the surface owner to seek remediation because the surface owner already owns real rights ‘in his favor,’ as he owns the bundle of real rights that constitutes surface ownership.” 8 conclusion is apparent in the reasoning behind La.R.S. 31:16, which [is] illustrated in the Comments stating:
All things considered, the lease has the major characteristics of a real right: the mineral lessee may follow the land, regardless of transfers of ownership; the mineral lessee may assert his rights against the world just as the proprietor of any other real right; he may enjoy directly and draw from the land a part of its economic advantages by appropriating a wasting asset; he has certain rights of preference; and he holds a right that is in reality susceptible of a type of possession through exercise.
The fact that the real right created is the right held by the lessee, is specifically noted in the Comments to La.R.S. 31:154, “The mineral lease, though it creates a real right in the hands of the lessee is still an elaborate contractual relationship.” Accordingly, the mineral lease gives real rights to the lessee, but the Mineral Code is void of any indication that it creates real rights in favor of the lessor. This is accounted for in the Comments to La.R.S. 31:16, which note:
It is true that there are certain distinctions from the normal real right which give the mineral lease markings of kinship to personal rights. Not all obligations created by the lease are binding on a subsequent owner of the land.
After reviewing Bundrick, 159 So.3d 1137, and the federal court’s
explanation in Minvielle, 380 F.Supp.2d 755, we find that Louisiana statutory law
holds that a mineral lease creates a real right in favor of the mineral lessee rather
than the lessor. Thus, Grace Ranch’s argument that a mineral lease creates a real
right which runs with the land and enables a landowner to sue for property damage,
is without merit.
Grace Ranch next argues that upon the expiration of a mineral lease, the
mineral lessee owes an end of the lease restoration obligation to both the mineral
lessor and surface owner, which can be enforced by any subsequent purchaser of
the property. In its amended petition, Grace Ranch alleged that Defendants
violated the “implied obligation of lessees under” La.R.S. 31:122, which provides:
9 A mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.
The statute’s express terms obligate the lessee to perform the contract in
good faith and act as a reasonably prudent operator. Terrebonne Parish Sch. Bd. v.
Castex Energy, Inc. 04-968 (La. 1/19/05), 893 So.2d 789. This article fails to
impose an express duty to restore the surface. Id. “Rather, it simply adapts the
general, ‘good administrator’ standard of La.Civ.Code art. 2710, applicable to all
leases, to the specific context of a mineral lease.” Id. at 797. “[I]n the absence of
an express lease provision, Mineral Code article 122 does not impose an implied
duty to restore the surface to its original, pre-lease condition absent proof that the
lessee has exercised his rights under the lease unreasonably or excessively.” Id. at
801.
In this case, Defendants have no implied duty to restore the surface of the
property under La.R.S. 31:122 absent proof that they unreasonably exercised their
rights under the lease. Thus, Grace Ranch’s reliance on La.R.S. 31:122 is
misplaced.
Moreover, Grace Ranch’s argument presumes that a mineral lease burdens
the lessee with a real obligation to restore property in favor of the landowner. To
determine whether Grace Ranch’s presumption is correct, we look to the
relationship between real obligations and real rights. In that regard, “[a]n
obligation is a legal relationship whereby a person, called the obligor, is bound to
render a performance in favor of another, called the obligee.” La.Civ.Code art.
1756. “A real obligation is a duty correlative and incidental to a real right.”
La.Civ.Code art. 1763. The comments to La.Civ.Code art. 1763 provide that real
10 obligations are “incurred as a result of ownership or possession of a thing burdened
by a real right[.]” “Mineral rights are real rights” which are subject to prescription
of nonuse for ten years. La.R.S. 31:16. “The basic mineral rights that may be
created by a landowner are the mineral servitude, the mineral royalty, and the
mineral lease.” Id. Under La.R.S. 31:114, “[a] mineral lease is a contract by
which the lessee is granted the right to explore for and produce minerals.”
In analyzing the foregoing articles with respect to mineral leases, we find
that the mineral lessee is the owner of the real right. The corresponding real
obligation, therefore, relates to the burden placed on the landowner’s rights in
property pursuant to the mineral lease, i.e., the property owner’s obligation to let
the mineral lessee enter the property and explore for oil and gas. Thus, Grace
Ranch’s presumption that the mineral lease burdens the lessee with a real
obligation to restore property in favor of the landowner is misplaced.
Grace Ranch contends that it has a right of action to sue for pre-acquisiton
damages based upon the legal principles governing limited personal servitudes and
usufructs. In that regard, we look to the dual nature of a mineral lease, i.e.,
featuring characteristics of both contracts and rights in property, as explained by
the federal court in Minvielle, 380 F.Supp.2d at 775, as follows:
Thus, it is in the nature of a limited personal servitude that the mineral lease is a real right. The limited personal servitude is explained in the Comments to La. C.C. Art. 639 as constituting “an intermediary category between personal and predial servitudes. Like usufruct and habitation, they are charges on things in favor of a person rather than an estate; like predial servitudes, they are necessarily charges on an immovable belonging to another person and are confined to certain advantages of use or enjoyment.” Although a right of use, i.e., a personal servitude, is a real right, it is one granted in favor of a person rather than an estate, and therefore it does not pass with the property upon sale of the property. Sustainable Forests, L.L.C. v. Harrison, 846 So.2d 1283, 1284 (2003).
11 Based upon our interpretation of Minvielle, along with Louisiana
jurisprudence and statutory law, we find that although a mineral lease is a real right
under La.R.S. 31:16, it is not purely a real right that automatically attaches to the
property. Thus, Grace Ranch’s argument does not defeat application of the
subsequent purchaser rule whereby the right to sue for pre-acquisition damages is a
personal right of action that a subsequent purchaser cannot acquire without an
assignment or subrogation of rights. Accordingly, Grace Ranch’s argument is
without merit.
Grace Ranch further contends that as the surface owner, it has a right of
action pursuant to La.R.S. 31:11(A), which provides:
The owner of land burdened by a mineral right or rights and the owner of a mineral right must exercise their respective rights with reasonable regard for those of the other. Similarly the owners of separate mineral rights in the same land must exercise their respective rights with reasonable regard for the rights of other owners.
Grace Ranch then compares La.R.S. 31:11(A) to its analogous provision contained
in La.Civ.Code art. 667, which governs the limitations placed on a proprietor’s use
of his property.2
A similar issue was addressed in Global Marketing, 153 So.3d 1209,
wherein the plaintiff alleged that it had a real right of action against the defendants
based upon La.R.S. 31:11 and La.Civ.Code art. 667. The first circuit held:
Even if we make the assumption that La. C.C. art 667 bestows real rights and obligations between owners of adjacent immovable property, Global never shared that relationship with the defendants. As the article is written, Global and the defendants were never “neighbors.” The mineral leases were executed decades before Global
2 According to La.Civ.Code art. 667:
[I]f the work [a proprietor] makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. 12 purchased the property. By the time Global purchased the property in 2005, all of the defendants’ mineral leases had expired. The defendants never did lease rights to the minerals under the property while Global owned it, which means they never could have been “neighbors,” even in the broadest sense. Therefore, Global cannot enforce any rights against the defendants under La. C.C. art. 667. While Global insists that this article confers real rights to be enforced against the defendants, Global presents no statute or jurisprudence which supports this interpretation.
Article 11 of the Mineral Code confers correlative rights on the land owner and the owner of the mineral right to exercise their rights with reasonable regard for those of the other, and Article 134 states that in violation of a mineral lease, the aggrieved party is entitled to appropriate relief provided by law. Again, these articles contemplate the real rights and obligations that exist between parties who occupy the land contemporaneously with a mineral lease.
Id. at 1215 (footnotes omitted).
In this case, the evidence in the record reveals that the subject lease expired
prior to Grace Ranch’s acquisition of the property. Thus, Grace Ranch had no real
right of action against Defendants pursuant to these articles because they were
never neighboring proprietors. Accordingly, Grace Ranch’s argument is without
merit.
Grace Ranch contends that it acquired the right to enforce the end-of-lease
obligations of the subject lease when it acquired one half of the mineral rights upon
the expiration of General Farms’ mineral servitude. In support, Grace Ranch cites
Plaquemines Parish Government v. Getty Oi1 Co., 94-1634 (La.App. 1 Cir. 5/5/95),
662 So.2d 773, and Reagan v. Murphy, 105 So.2d 210 (La.1989), for the
proposition that when an owner acquires mineral rights, the ownership of the
minerals and surface are merged, and the owner of the land thereby acquires the
right to enforce the lessee’s obligations arising from the prior lease. Our review of
Plaquemines Parish Government, 662 So.2d 773, and Reagan, 105 So.2d 210,
reveals that both cases involved leases that had not expired. In this case, the
13 subject lease had expired by the time Grace Ranch acquired its interest.
Accordingly, Grace Ranch’s reliance on those two cases is misplaced.
Grace Ranch’s fifth assignment of error is without merit.
III. Post-Sale Assignment of Rights
Grace Ranch’s third assignment of error focuses on its right to assert claims
based upon its assignments from previous property owners. Grace Ranch contends
that it was assigned the right to enforce the restoration obligation of the subject
lease from General Farms, in its capacity as owner of the mineral rights. It alleges
that the right of restoration was also assigned by both General Farms and the
Leblancs, in their capacity as surface owners, since their surface rights were
subject to the lease. Grace Ranch contends that the trial court committed error in
finding that the assignment from General Farms was invalid based on General
Farms’ affidavit of dissolution.
In its reasons for judgment, the trial court acknowledged that Grace Ranch
“sought and obtained a number of assignments from previous owners of the
property” “[i]n an attempt to comply with the subsequent purchaser rule[.]” The
trial court explained that at the time General Farms assigned its claims, it was a
dissolved corporation and as such, legally incapable of assigning claims. The trial
court noted that General Farms had been previously dissolved by affidavit without
formal liquidation in accordance with La.R.S. 12:142.1, which did not enable
General Farms’ own claims to survive. The trial court held that corporations such
as General Farms which have been “dissolved by affidavit do not maintain any
claims or causes of action to assert on its own behalf and therefore have nothing to
assign.”
14 On review, the record reveals that General Farms was dissolved by affidavit
on January 25, 1999, 3 pursuant to La.R.S. 12:142.1 and 12:250.1. Although
La.R.S. 12:142.1 has since been repealed by 2014 La. Acts No. 328, § 5, the fourth
circuit in Gendusa v. City of New Orleans, 93-1527 (La.App. 4 Cir. 2/25/94), 635
So.2d 1158, 1162, writ denied, 94-1508 (La. 9/23/94), 642 So.2d 1296, explained:
[Louisiana Revised Statutes] 12:142.1 provides for corporate dissolution by affidavit, without formal liquidation:
“A. In addition to all other methods of dissolution, if the corporation is not doing business and owes no debts, it may be dissolved by filing an affidavit with the secretary of state executed by the shareholders, . . . , attesting to such facts and requesting that the corporation be dissolved. Thereafter, the shareholders, . . . , shall be personally liable for any debts or claims, if any, against the corporation in proportion to their ownership in the shares of the corporation.” (Emphasis added)
The Gendusa court interpreted the provision as follows:
This provision was added in 1982 to provide a means of avoiding the costs and delays of a formal liquidation, but is limited in its application to corporations no longer doing business. While the statute provides that shareholders are to assume any lingering corporate debts, there is no provision allowing survival of the corporation’s inchoate claims. Where a corporation has such outstanding claims or obligations, the appropriate method of dissolution is through a voluntary liquidation, with appointment of a liquidator and the orderly collection of claims, payment of debts and transfer of assets.
Id. at 1162.
Application of Gendusa to the instant matter provides that General Farms’
election to dissolve the corporation via La.R.S. 12:142.1 resulted in a waiver of its
right to assert any outstanding claims since “there [was] no provision allowing
survival of the corporation’s inchoate claims.” Gendusa, 635 So.2d at 1162.
3 The trial court’s reasons for judgment state that General Farms was dissolved by affidavit on January 25, 2009, although the record reflects that it was dissolved on January 25, 1999. 15 Accordingly, we find that General Farms was a dissolved corporation incapable of
assigning claims to Grace Ranch.
With respect to the assignments from the Leblancs, the trial court held that
the “only claims they could assign were those tort claims arising during their
approximately 1.5 years of ownership of the surface of the tract of land.” The trial
court remarked that if those claims existed, they prescribed when Grace Ranch
failed to timely supplement the petition. According to the trial court, Grace Ranch
filed its original petition in 2011 and obtained assignments of the tort claims from
the Leblancs and/or their heirs in January 2013. The trial court held that
“[a]cquiring the rights does not cure the defect in the original Petition.”
On review, we look to statutory and jurisprudential law to determine when
an amendment relates back to the filing of the initial pleading. In that regard,
La.Code Civ.P. art. 1153 provides: “When the action or defense asserted in the
amended petition or answer arises out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading, the amendment relates
back to the date of filing the original pleading.” An amendment relates back only
if the plaintiff possessed a right of action to assert those claims at the time of the
initial filing. See Boone, 139 So.3d 1047; see also Taylor v. Babin, 08-2063
(La.App. 1 Cir. 5/8/09), 13 So.3d 633, writ denied, 09-1285 (La. 9/25/09), 18
So.3d 76.
An amendment of claims was explained in Boone, wherein this court found
that the plaintiffs’ second supplemental petition, which was filed over two years
after the filing of the initial petition, did not relate back. In Boone, 139 So.3d at
1061 (footnote omitted), the court stated:
Even if the September 2012 assignments from the previous owners had conferred valid and timely rights, the assignments arose two and a half years after the original petition was filed in May of 16 2010. As discussed, the tort rights had prescribed before the original petition was filed, and the assignments did not confer a right of action in contract. The rights sought to be bestowed in the assignments were not exigible at the time of suit in 2010. Therefore, the claims in the new petition were supplemental, not amending, no matter how the caption of the petition reads, and the relation back of La.Code Civ.P. art. 1153 applies only to amending petitions. Smith v. Cutter Biological, 99-2068 (La. App. 4 Cir. 9/6/00), 770 So.2d 392.
An “untimely filed original petition does not support the relation-back of a new cause of action[.]” Allen v. State, Dept. of Public Safety & Corrections, 12-430, p. 6 (La.App. 3 Cir. 11/7/12), 107 So.3d 106, 110 (quoting Cutter Biological, 770 So.2d at 413). Nor does an original petition filed by a party without a right of action to file it. See Naghi v. Brener, 08-2527 (La. 6/26/09), 17 So.3d 919.
The Boone court further discussed an amendment of pleadings under
La.Code Civ.P. art. 1151 versus supplemental pleadings under La.Code Civ.P. art.
1155. The former allows a party to “amend its petition if the new claims accrued
prior to filing the original suit” whereas the latter allows a party “to file a
supplemental petition setting forth related items of damage or causes of action that
became exigible after the original petition was filed[.]” Boone, 139 So.3d at 1061,
n.3. The Boone court advised, however, that “relation back of [La.Code Civ.P. art.]
1153 applies only to the amended petition.” Id.
In this case, the evidence in the record confirms that Grace Ranch filed its
original petition in 2011. In 2013, Grace Ranch sought several assignments of tort
claims from the Leblancs and/or their heirs. According to La.Civ.Code art. 3493,
“[w]hen damage is caused to immovable property, the one year prescription
commences to run from the day the owner of the immovable acquired, or should
have acquired, knowledge of the damage.” In 2017, Grace Ranch filed a “First
Amended Petition for Damages,” asserting the tort claims it was previously
assigned in 2013. According to the dictates of Boone, the rights sought to be
bestowed in the assignments were not exigible at the time Grace Ranch filed suit in
2011. Thus, the claims asserted in Grace Ranch’s 2017 pleading were 17 supplemental rather than amending. Since relation back under La.Code Civ.P. art.
1153 applies only to amending petitions, the claims asserted in Grace Ranch’s
2017 supplemental petition do not relate back to the original petition’s filing.
Since the claims do not relate back, the newly alleged tort claims prescribed before
they were asserted.
On appeal, Defendants also contend that the mineral lease was expired.
Defendants argue that General Farms could not validly assign claims under an
expired mineral lease just as the LeBlancs could not validly assign rights that were
subject to an expired lease.
On review, we look to LeJeune Brothers, Inc. v. Goodrich Petroleum Co.,
L.L.C., 06-1557, p. 6 (La.App. 3 Cir. 11/28/07), 981 So.2d 23, 28, writ denied, 08-
298 (La. 4/4/08), 978 So.2d 327, wherein this court agreed that it is “impossible to
transfer rights to an assignee under an expired mineral lease.” This court noted:
Although LeJeune Brothers argues it acquired the property from the mineral lessor, since the lease had expired at least two years before Baez sold the property to LeJeune Brothers, Baez was not a mineral lessor. Therefore, he could not assign any rights under the expired Baez lease in that sale. Further, we note LeJeune Brothers at the summary judgment hearing acknowledged it was not an assignee or party under the lease[.]
Id.
In this case, the evidence in the record reflects that General Farms owned the
surface rights and mineral rights in the subject lease. The subject lease expired by
1986. Grace Ranch thereafter obtained the assignments in 2013. Grace Ranch,
therefore, could not have been assigned any rights in the subject lease because “it
[is] impossible to transfer rights to an assignee under an expired mineral lease.”
LeJeune, 981 So.2d at 28. Accordingly, Grace Ranch’s third assignment of error is
18 Grace Ranch’s fourth assignment of error alleges that “[t]he trial court
committed error in relying in part on prescription in dismissing the claims of the
plaintiff because prescription was not at issue.” We decline to address this
assignment based on our finding that Grace Ranch has no right of action.
DECREE
The trial court’s judgment granting motions for summary judgment in favor
of J.P. Van Way, BP America Production Company, and BHP Billiton Petroleum
(Americas), Inc. and an exception of no right of action in favor of J.P. Van Way is
affirmed. All costs associated with this appeal are assessed to Grace Ranch, LLC.