Kennedy v. Saheid

209 So. 3d 985, 2016 La. App. LEXIS 2094
CourtLouisiana Court of Appeal
DecidedNovember 16, 2016
DocketNo. 51,044-CA
StatusPublished
Cited by7 cases

This text of 209 So. 3d 985 (Kennedy v. Saheid) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kennedy v. Saheid, 209 So. 3d 985, 2016 La. App. LEXIS 2094 (La. Ct. App. 2016).

Opinion

MOORE, J.'

hMohamed “Jack” Saheid appeals a judgment that recognized Roy Gish as the owner of a 12 ⅜% mineral interest in a 1,096-acre tract of land in north Caddo Parish that Saheid purchased from Gish by three transactions in 2004 and 2008. For the reasons expressed, we affirm.

Factual Background

Saheid, an investor then living in Worth-ing, England, testified that in 2004 he was trying to buy a hotel in New Orleans. When that deal fell through, a real estate agent suggested buying an oil and gas field in north Louisiana.- A broker named Carl David got in touch with Gish, who was [988]*988then living in Belcher and was interested in selling his 1,096-acre tract of land complete with about 600 oil and gas wells. After several phone conferences, Saheid faxed to David an undated offer (“the Offer”) to buy the property for $4 million “for 100% ownership,” with $200,000 down and the remainder to be owner-financed over five years.

On October 9, 2004, Saheid and Gish signed a one-page, unnotarized agreement (“the Agreement”) with respect to “Real Estate transaction involving 1,096 acres, including all oil and gas leases, rent houses, all structures and other equipment as stated in previous documents, located at 9886 N Hwy 169, Belcher, Louisiana.” The Agreement included this final provision:

Other: SELLER to give a best effort to deliver to BUYER the remaining 12 ⅜% GISH family oil and gas lease holding.

On November 2, 2004, the parties met at First Title Corporation in Metairie, Louisiana, and executed an authentic act entitled Act of Credit Sale and Assignment of Oil, Gas and Mineral Leases, Rights to Pipelines and LWells and Gathering Systems, and Equipment Leases (“the Act of Credit Sale”). The Act of Credit Sale recited that Gish and “The Roy D. Gish and Norma L. Gish Charitable Remainder Unitrust” conveyed “ALL THAT CERTAIN LOT OR PARCEL OF GROUND,” with all rights, ways, servitudes and component parts, to Saheid. The Act of Credit Sale included a special provision (“Paragraph K”) that stated:

K. The Trust and Purchaser acknowledge and agree that the Trust has represented to the Purchaser that the Trust is the sole and only owner of an undivided 87.5% interest in and to the leases assigned herein. Should that representation be incorrect, and should any claim be successfully asserted against the interest conveyed by the Trust to the Purchaser, then, and in that event, the purchase price attributable to said leases shall be reduced by the sum of [$400,-000], without the necessity of the modification of this agreement and/or the execution of any other documents, provided, however, that any such claim be asserted on or before November 80, 2009.

Gish testified that he received, and Sa-heid confirmed that he paid, the 12 ⅜% mineral royalty for almost four years, until early 2008. To resolve this and other points of dispute, the parties executed an authentic act labeled “Contract,” on April 24, 2008. Gish agreed to reduce Saheid’s monthly payment, to suspend payments for three months, and to allow Saheid to enter mineral leases without Gish’s consent. Saheid agreed to dismiss a federal suit against Gish and his family trust, and to delete Paragraph K in its entirety from the Act of Credit Sale. The Contract included this additional provision (“Paragraph 2(d)”):

2. Buyer shall: * * *
d) Waive and relinquish all rights to reduce the purchase price based on any claim that the percentage interest in any land ownersf] royalty interest or leases assigned to buyer were less than what has been represented by seller * * *. Buyer consents to and acknowledges that seller has and shall continue to withhold a 6.25% royalty for the Kennedy family and a 6.25% royalty to Ruth Sheppard et al, on the 1,096 acres.

IsGish testified that the final payment he received was for May 2008 royalties; Department of Conservation records showed that Saheid shut in the wells for four months, and then signed a paid-up mineral lease wherein the lessee paid all royalties to Saheid, and none to Gish, his family members or the trust. Gish and his family members sent demand letters in January [989]*989and October 1009, but Saheid never paid them their claimed 12 ½%.

Gish, joined by his mother, Charlotte, his sister, Ruth (and her husband), and his own wife, Rena, filed this suit against Sa-heid in March 2010. He sought recognition of the plaintiffs’ respective 6 ¾% (total 12 ½%) royalty interests, an accounting, sequestration of all proceeds, and double damages under La. R.S. 31:212.21.

Evidence at Trial

After extensive discovery and cross-motions for summary judgment, the case came to trial in August 2015. Observing that Gish was the only plaintiff to appear in court, Saheid moved for involuntary dismissal of all other plaintiffs, La. C. C. P. art. 1672 A(l). Gish agreed as to his wife, his sister and her husband, and they were dismissed without prejudice, but Gish claimed the whole 12 ½%, not just his mother’s 6 ⅛%. Saheid filed an exception of no right of action as to the sister’s 6 ⅜%; the court referred this to the merits.

Four witnesses testified. Carl David, the broker, testified that he recalled the Agreement and was present when the Act of Credit Sale was executed. The deal was that Saheid was buying 100% of the tract except for this 12 ½% mineral interest. In the Agreement, Gish was going to try to convince his mother and sister to sell their share, and in the Act of Credit Sale, they added Paragraph K because they could not get a definite title Ropinion as to ownership of the minerals, but Saheid was very unhappy about not getting all the minerals. Over time, the relationship strained, in David’s view, because Saheid thought Gish was trying to get the property back and run it dry, while Gish thought Saheid just was not paying him. They executed the Contract in a lawyer’s office, at which time David thought they had resolved all differences. However, David learned that a potential lessee had advised Saheid that the family’s 12 ½% interest was not recorded, so Saheid stopped paying. David felt that Paragraph 2(d) reiterated that, of the mineral interest, all Gish had ever sold and all Saheid had ever bought, was 87 ½%. On cross-examination, David admitted that he had done no independent research as to whether Gish’s family had a recorded 12 ½% mineral interest, and agreed that the Contract was “poorly drafted.”

Gish, who now lives in New Boston, Texas, testified that the original deal was to sell the land and minerals outright for $4 million, but Saheid could not get financing. They therefore settled on owner financing with a retention of 12 ½% mineral interest for his mother and sister, a point accurately stated (in Gish’s view) in the Agreement and in Paragraph K. Gish also testified that since he bought out his brother, he was full owner of the land, surface and minerals, and had established the trust for tax purposes, but this did not affect the 12 ⅜% retention. Gish insisted that his intent was to sell only 87 ⅜% of the minerals, as reflected in the Agreement, the Act of Credit Sale and the Contract, and confirmed by the fact that Saheid paid him 12 ½% mineral royalties for nearly four years.

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Cite This Page — Counsel Stack

Bluebook (online)
209 So. 3d 985, 2016 La. App. LEXIS 2094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-saheid-lactapp-2016.