STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-328 consolidated with 17-418
THE SUVA CORPORATION, ET AL.
VERSUS
JANE RENEE JOHNSON SMITH, ET AL.
**********
APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 63,173 & NO. 64,615 HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Shannon J. Gremillion, Judges.
AFFIRMED. John S. Bradford Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P. P. O. Box 2900 Lake Charles, LA 70602 (337) 436-9491 COUNSEL FOR PLAINTIFF/APPELLANT: Leon Lucien Languirand, Executor, Succession of Martha Ann Hardee Languirand
Michael S. Coyle Attorney at Law Post Office Box 636 Ruston, LA 71273-0636 (318) 254-8200 COUNSEL FOR DEFENDANTS/APPELLANTS: Jane Renee Johnson Smith Leon Lucien Languirand, Executor, Succession of Martha Ann Hardee Languirand Trentice Van Johnson, Jr. Hugh Clark Hinton Samual Jackson Hinton Robert Hugh Johnson
William A. Jones, Jr. Attorney at Law Post Office Box 2644 Ruston, LA 71273-2644 (318) 255-2944 COUNSEL FOR DEFENDANTS/APPELLANTS: Hugh Clark Hinton Samual Jackson Hinton Robert Hugh Johnson Trentice Van Johnson, Jr. Jane Renee Johnson Smith Leon Lucien Languirand, Executor, Succession of Martha Ann Hardee Languirand
Charles E. Tabor Gregorio, Chafin, Johnson, Poolson & Tabor, L.L.C. 7600 Fern Avenue, Building 700 Shreveport, LA 71105 (318) 865-8680 COUNSEL FOR PLAINTIFFS/APPELLEES: The Suva Corporation Hardee Family Properties, LLC T. W. Hardee Properties, LLC GREMILLION, Judge.
The defendants,1 heirs to real property located in Sabine Parish, appeal the
trial court’s finding of a mutual mistake in a deed executed in 1949 by brothers,
Hugh and Thomas Hardee, resulting in the plaintiffs 2 being declared the sole
owners of tracts of land in question. 3 For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND4
In September 2010, the Suva plaintiffs filed a petition for declaratory
judgment seeking to be declared the owners of certain immovable property located
in Sabine Parish. In October 2010, the Suva plaintiffs filed their first amending
and supplemental petition to the petition for declaratory judgment urging that a
mutual error existed in the March 9, 1949 deed from Hugh to Thomas that omitted
some property from the deed. 5 In response, the defendants filed peremptory
exceptions of prescription, no right of action, and no cause of action. The Suva
plaintiffs, thereafter, filed a second amending and supplemental petition to their
1 The defendants are Jane Renee Johnson Smith, Trentice Van Johnson, Jr., Robert Hugh Johnson, Martha Ann Hardee Languirand, Hugh Clark Hinton, and Samual Jackson Hinton. 2 The plaintiffs are all descendants of Thomas (or businesses comprised of Thomas’s descendants). The Suva Corporation, LLC, Hardee Family Properties, LLC, and T.W. Hardee Properties, LLC, filed suit in 2010 (Suva plaintiffs). The Salamander Land, LLC and SHS Investments plaintiffs filed their petition for declaratory judgment in May 2012 (Salamander plaintiffs). We refer to them collectively as plaintiffs. 3 These consolidated matters include docket numbers 17-328 (the Suva plaintiffs) and 17- 418 (the Salamander plaintiffs). 4 This factual background follows the history of the first-filed suit. Similar pleadings were filed by the Salamander plaintiffs once they filed their petition for declaratory judgment in 2012. Because the substantive matters are the same, we will not repeat the details of the proceedings. 5 The first amending and supplemental petition stated:
39. The mutual error was some property was omitted from the deed including the following described property, to wit:
The North Half of the Southeast Quarter of Section 10, Township 8 North, Range 11 West, Sabine Parish, Louisiana and the Southwest Quarter of the Southeast Quarter of Section 10, Township 8 North, Range 11 West, Sabine Parish, Louisiana. petition for declaratory judgment pleading in the alternative ten years good faith
acquisitive prescription and thirty years acquisitive prescription of the disputed
property. In their third amending and supplemental petition, the Suva plaintiffs
again noted the mutual error omitting the following described property: 6
44.
The mutual error was that some property was omitted from the
Deed including the following described property to-wit:
The Southwest quarter of Northwest quarter of Section 15, Township 8 North, Range 11 West, Sabine Parish, Louisiana which property was subsequently transferred by the Deeds, Judgment of Possession and Partition as described in Plaintiff’s original Petition to T.W. Hardee Properties, LLC.
The petition further urged that T.W. Hardee Properties, LLC and its
ancestors had possessed the above property since 1947. The defendants filed a
reconventional demand urging that the Suva plaintiffs had wrongfully received
revenue from timber sales and oil and gas leases from the disputed property. In
response, the Suva plaintiffs filed an exception of prescription.7 8
6 The original Suva petition sought a declaratory judgment naming:
a) THE SUVA CORPORATION is the owner of the Southwest Quarter of the Southeast Quarter of Section10, Township 8 North, Range 11 West, Sabine Parish, Louisiana.
b) T.W. Hardee Properties, LLC is the owner of the Northeast Quarter of the Southeast Quarter of Section 10, Township 8 North, Range 11 West, Sabine Parish, Louisiana.
c) Hardee Family Properties, LLC is the owner [of] the Northwest Quarter of the Southeast Quarter of Section 10, Township 8 North, Range 11 West, Sabine Parish, Louisiana. 7 That exception was granted finding that any claims the plaintiffs-in-reconvention may have had against the defendants-in-reconvention were barred by liberative prescription of ten years. 8 Later, the trial court vacated the judgment granting the defendants’ peremptory exceptions of prescription and no cause of action and denied the exceptions based on its underlying findings that plaintiffs had no knowledge of the subject property until 2010 and, therefore, prescription could not have begun to run until then. 2 In August 2015, the Suva plaintiffs filed a motion to consolidate this action
with docket number 17-418. The Salamander case was tried first. The Salamander
petition described the disputed property as:
Tract 1: The West Half of the Southwest Quarter of the Southwest Quarter of Section 1 and the Southwest Quarter of the Southwest Quarter of Section 3, all in Township 8 North, Range 11 West, Sabine Parish, Louisiana[.]
Tract 2: The Southeast Quarter of the Southwest Quarter of Section 3, Township 8 North, Range 11 West, Sabine Parish, Louisiana[.]
At the conclusion of the case, the Salamander record was introduced into the
Suva case. Following the submission of the documentary evidence to the trial
court, it rendered a judgment in December 2016, in favor of all of the plaintiffs,
finding that they are the sole owners of the property. The trial court issued
extensive findings of fact and conclusions of law. The trial court concluded that
the brothers omitted the disputed tracts by mutual mistake and reformed the 1949
deed to include the disputed tracts.
The defendants appeal the trial court’s judgment and assign as error:
1. In order to reform a deed on the basis of mutual mistake and add undescribed tracts to the conveyance, Louisiana Courts have imposed an extraordinary burden of proof on plaintiffs, requiring the plaintiff to prove mutual mistake by “clear, and the strongest possible, proof;” therefore, it was error for the Trial Court to reform the 1949 Deed on what, at best, can only be characterized as inconclusive evidence.
2. It is well established that a deed, as the last expression of the parties’ agreement, controls and supersedes whatever previous discussions or agreements may have taken place between the parties; therefore, the Trial Court erred when it imported the omnibus language contained in the Purchase Agreement into the 1949 Deed and used that imported omnibus language as the basis for adding the Disputed Tracts to the 1949 Deed.
3 3. In determining whether to reform the 1949 Deed and in deciding whether the Plaintiffs had carried their burden of proving mutual mistake by “clear, and the strongest possible, proof,” the Trial Court was obligated to consider all the evidence; therefore, it was error for the Trial Court to disregard the facts that:
a. The 1949 Deed did not include the omnibus language contained in the Purchase Agreement;
b. Hugh Hardee retained other tracts of Sabine land he owned in 1949 and which he sold in 1953;
c. In 1953, during Thomas’s lifetime, he sold some of the land he had retained in 1949.
d. Hugh Hardee gave Thomas Hardee his power of attorney to add any tracts mistakenly left off the 1949 Deed and Thomas Hardee exercised that power of attorney to add certain tracts, but did not use that power of attorney to add the Disputed Tracts.
DISCUSSION
Standard of Review
The defendants argue that we should review the record de novo because this
case involves “contract interpretation.” However, we have previously held that the
determination of whether a mutual error existed such that contract reformation is
warranted is a question of fact, and we will not disturb the trial court’s findings
unless it was clearly wrong. See Teche Realty & Inv. v. Morrow, 95-1473 (La.App.
3 Cir. 4/17/96), 673 So.2d 1145; WMC Mortgage Corp. v. Weatherly, 07-75 (La.
App. 3 Cir. 6/13/07), 963 So.2d 413, writ denied, 07-1475 (La. 10/5/07), 964 So.2d
945. Accordingly, if reasonable people could reach the same conclusion after a
review of the record, the trial court’s finding cannot be clearly wrong even if, had
we been sitting as the trier of fact, we may have reached a different conclusion.
Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). The
trial court issued extensive reasons for its findings, stating in part:
4 The 1949 Agreement and subject deed recorded March 17, 1949, was without question an omnibus designation translative of title of the subject tracts as it reflects the unequivocal intent of Hugh M. Hardee to sell to his brother, Thomas W. Hardee, Jr., “all of the immovable property owned by him as of July 31, 1947, in the Parish [] of . . . Sabine, State of Louisiana . . . [except for certain specified parcels].” . . . Based on the terms of the 1949 Agreement alone, the omnibus designation language therein serves as though the lands were specifically described in it. Albeit that a few stray parcels of the considerable collection of parcels transferred in the singular transaction, amounting to approximately 2500 acres, were not specifically described in the companion deed,[9] the omnibus designation language essentially cures that defect be it caused by error or not.
...
The agreement executed on March 9, 1949, contemporaneously with the subject deed, when read together, form the basis of the brothers’ agreement. The 1949 Agreement expressly provides that Hugh was selling all of his property to Thomas. . . . Had there been intent to delete the Omitted Property from the sale, logic stands that it would have been likewise removed from the 1949 Agreement. It should be remembered that in rural Pleasant Hill, Louisiana in 1949, the ease and precision now afforded by computers and online conveyance records were then the subject of science fiction. Such an error could not be unexpected with the large swath of remote rural undeveloped land that was made subject of this transaction. Further, the fact that Hugh granted Thomas power of attorney, also contemporaneously executed with the 1949 Agreement and subject deed, to correct any problems with the subject deed, further buttresses the omnibus designation intent of the parties that Hugh was washing his hand of “all of the immovable property owned by him as of July 31, 1947, in the Parishes of Caddo, DeSoto, Natchitoches, Red River, and Sabine, State of Louisiana, and in Miller County, Arkansas” to the exclusion of specifically identified properties. Thomas Hardee employed that power of attorney to add a parcel of land,
9 We note that there are various descriptions of the disputed property in the record. Prior to the trial court’s ruling, it requested “precise descriptions of the subject properties each party understands is at issue.” The trial court’s judgment described the disputed property as:
The West Half of the Southwest Quarter of the Southwest Quarter of Section 1 and the Southwest Quarter of the Southwest Quarter of Section 3, all in Township 8 North, Range 11 West, Sabine Parish, Louisiana
and
The Southeast Quarter of the Southwest Quarter of Section 3, Township 8 North, Range 11 West, Sabine Parish, Louisiana.
5 Section 15, back into the 1949 Deed, a parcel adjacent to the Omitted Property. This court finds it very logical that as the Section 15 property was omitted “through error, oversight and inadvertence” from the 1949 Deed and was added into it, likewise was the Omitted Property here. The court concludes that the brothers failed to discover the remaining Omitted Property prior to their deaths.
Deed Reformation
The moving party in a reformation action bears a heavy burden of proving a
mutual mistake or error by clear and convincing proof. Teche, 673 So.2d 1145.
An act of sale is usually a final expression of the parties’ intent following a
negotiation process. Id. An authentic act is full proof of the agreement it contains
as against the parties. La.Code Civ.P. art. 1835. Reformation is an equitable
remedy which is available to correct errors or mistakes in written instruments only
when the instrument does not reflect the parties’ true intent. Teche, 673 So.2d
1145; Agurs v. Holt, 232 La. 1026, 95 So.2d 644 (1957). A mutual mistake is
a mistake shared by both parties to the instrument at the time of reducing their agreement to writing, and the mistake is mutual if the contract has been written in terms which violate the understanding of both parties; that is, if it appears that both have done what neither intended. The evidence of mutuality must relate to the time of the execution of the instrument and show that the parties then intended to say one thing and by mistake expressed another and different thing.
Succession of Jones v. Jones, 486 So.2d 1124, 1127 (La.App. 2 Cir.), writ denied,
489 So.2d 249 (La.1986). Parol evidence is admissible to prove the parties’ true
intent. Catyb v. Deville, 246 So.2d 41 (La.App. 3 Cir. 1971).
Evidence
In this case, there are no living parties or witnesses to the contract.
Therefore, the brothers’ intent in creating the 1949 Deed must be gleaned from the
documents and actions of the parties at the time.
6 The defendants argue that the trial court rewrote the 1949 Deed by adding
the omnibus language from the Purchase Agreement to the Deed. The trial court
found that since the two documents were executed contemporaneously, they must
be read in “pari materia.” The defendants argue that the best evidence of Hugh’s
lack of intent to convey all of his Sabine Parish land to Thomas is the fact that he
retained ownership in other Sabine Parish land which he later sold in 1953 during
Thomas’ lifetime. The defendants argue that reformation of a sixty-seven-year old
contract on such grounds jeopardizes the stability of land titles. They further argue
that the omnibus “all my land in Sabine Parish” language found in the Purchase
Agreement was intentionally excluded from the 1949 Deed, and that it easily could
have been included since the same lawyer drafted both documents.
The plaintiffs, on the other hand, argue that the disputed property, although
included in the 1949 Agreement, was unintentionally left out of the 1949 Deed
which is detailed and massive, covering thousands of acres of land. The plaintiffs
urge that the omission was not discovered until nearly sixty years later when a land
man was trying to lease the property, and during the sixty years, the plaintiffs had
been in continuous and uninterrupted control and possession of the disputed
property. They further argue that the documents and facts surrounding the Deed
unequivocally prove that Hugh intended to convey all of his partnership property
to Thomas, and that the brothers were aware that some of the 2500 acres may not
have been properly listed; thus, Hugh gave Thomas the specific power to correct
any mistakes relating to the Deed. The plaintiffs point to the 1955 ratification
executed by Hugh in favor of Skelly Oil Company relating to the disputed property
in which Hugh affirmed that all bonus and rental moneys are to the be paid to
Thomas.
7 1949 Purchase Agreement
The March 9, 1949 signed “Contract and Agreement” (Agreement), which
was filed in the conveyance records on March 17, 1949, provides in part that Hugh
“contracted and sold to [Thomas10] all of the immovable property owned by him as
of July 31, 1947, in the Parishes of Caddo, DeSoto, Natchitoches, Red River and
Sabine, State of Louisiana, and in Miller County, Arkansas, except the property
owned by [Hugh] in Block 20, Block 34, and Block 35 of the Town of Pleasant
Hill, Louisiana . . .”
The Agreement further conveyed to Thomas “all of [Hugh’s] undivided
interest in and to the partnership which existed between [Hugh] and [Thomas], and
which was operated and carried on under the name of T.W. Hardee &
Company . . .” Hugh further reserved “one-half (1/2) of his interest in the oil, gas
and other mineral rights, in which reservation he agreed that [Thomas] would have
unlimited right to execute oil, gas and mineral leases covering said property and
receive and receipt for all bonus money . . .”
In the Agreement, Hugh executed an irrevocable power of attorney unto
Thomas, making Thomas his “agent and attorney in fact for the purpose of
executing any and all correction deeds and other documents necessary to cure and
perfect titles to any of the immovable property owned by [Hugh] prior to and as of
July 31, 1947.” In consideration for the sale, Hugh paid Thomas $100,000 payable
in four installments of $25,000.
The Agreement was signed by both Hugh and Thomas.
10 The contract refers to the “Party of the First Part,” i.e., Hugh and the “Party of the Second Part,” i.e., Thomas. For ease of reference we will use their names rather than this language. 8 1949 Deed
An image of the Deed is included for reference below to show the complex
descriptions of the vast amount of land conveyed from Hugh to Thomas. The
Deed was also executed on March 9, 1949, and filed into the conveyance records
on March 17, 1949.
9 10 1949 Power of Attorney
A separate “Power of Attorney,” dated March 9, 1949, was also recorded on
March 17, 1949, in which Hugh declared Thomas to be
his true and lawful agent and attorney in fact, . . . to execute any and all correction deeds, documents and other instruments necessary to perfect any and all land title to any immovable property owned by said Hugh M. Hardee prior to July 31, 1947, situated in the Parishes of
11 Sabine, Desoto, Red River and Caddo, State of Louisiana, which authority herein conveyed is irrevocable.
1950 Correction Deed
In December 1950, pursuant to the power of attorney executed by Hugh in
favor of Thomas, Thomas executed a Correction Deed that added one of the
omitted tracts11 that was included in the 1949 Agreement. The Correction Deed
affirmed Hugh’s reservation of 50 percent of the mineral royalties realized from
the property. The Correction Deed clearly incorporates the substance and language
found in the Agreement. The Correction Deed12 stated in pertinent part:
WHEREAS, on the 9th day of March, 1949, [Thomas] executed a contract with Hugh M. Hardee, wherein it was agreed that Hugh M. Hardee would convey to him all of the real estate, or immovable property, owned by him except certain property situated in the Town of Pleasant Hill, Louisiana; and,
WHEREAS, Pursuant to the terms of said contract the said Hugh M. Hardee authorized him, the said Thomas W. Hardee, Jr., a power of attorney duly executed to execute any and all correction deeds, documents and other instruments necessary to perfect the title to any and all lands to be conveyed according to the terms of said contract, as will more fully appear from said power of attorney which is recorded . . . .
WHEREAS, through error, oversight and inadvertence there was omitted from said deed dated March 9, 1949 and recorded under Instrument No 128,625, as aforesaid, the following described property situated in the parish of Sabine, Louisiana, to-wit:
The Southwest Quarter of the Northwest quarter of Section fifteen (15), township eight (8) north, Range eleven (11) west.
NOW, THEREFORE, in order to carry out the original intention as expressed by the said Hugh M. Hardee and Thomas W. Hardee, Jr. in said contract dated March 9, 1949 . . . .
11 The parties stipulate that this tract, located in Section 15, is not in dispute. 12 We note that there are multiple spacing and typographical errors related to the use of a manual typewriter that do not affect substance, which we have taken the liberty of correcting for ease of reading. 12 Skelly Oil Ratification
On September 15, 1955, Thomas granted an Oil, Gas and Mineral Lease in
favor of Skelly Oil Company on Section 10 of the omitted property. 13 On
September 29, 1955, Hugh executed a “Ratification” of the lease, which stated:14
This the said Hugh M. Hardee hereby ratifies and confirms said lease the same as if he was a lessor in said lease and hereby stipulates that all bonus and rental moneys are to be paid to Thomas W. Hardee, Jr. and that he, the said Hugh M. Hardee, is to receive his proportionate part of the royalties due and payable under said lease.
That the said Hugh M. Hardee hereby ratifies and confirms the lease referred to above in all of its terms and conditions.
Plaintiffs argue that the ratification is important, because the only documents
giving Thomas the right to receive bonus and rental payments are the 1949
Agreement and the 1949 Deed, and that Hugh would not have ratified it if he did
not believe that the disputed property was part of 1949 Deed. The trial court
agreed, finding:
This fact indubitably suggests that at the time of the ratification, Hugh Hardee thought the omitted properties were included in the [subject deed]. This court is at sea to come up with a plausible alternative explanation. This court’s conclusion is buttressed by the testimony of Defendants’ expert, Damon Weger, who not only stated that the 1949 Agreement and the 1949 Deed were the only documents that gave Thomas the right to receive bonus and rental funds, but that Hugh Hardee’s fifty-percent mineral reservation would require such a ratification. This further propels the court to conclude that the omitted properties were meant to be in the subject deed per the 1949 Agreement.
13 More particularly, the lease in favor of Skelly Oil Company covered:
The North Half of the Southeast quarter and the Southwest quarter of the Southeast quarter of Section 10, Township 8 North, Range 11 West[.] 14 We note that there are multiple spacing errors related to the use of a manual typewriter that do not affect substance, which we have taken the liberty of correcting for ease of reading.
13 Testimony and Tax Bills
Multiple defendants testified via deposition that they had no knowledge of
the disputed property until 2010, when contacted by a land man. The record also
included tax bills showing that Thomas and his descendants have always paid the
tax bills associated with the disputed property. Further, numerous transactions
such as partitions and successions involving the disputed property were carried out
by Thomas’s heirs.
Based on our review of the record, we find that reasonable people could
easily conclude, as the trial court did, that the plaintiffs proved by clear and
convincing evidence that the disputed property was omitted by mutual mistake of
the brothers, based on the simultaneously executed 1949 Purchase Agreement and
Deed, the Correction Deed, and the Skelly Oil Ratification document. Further, the
treatment of the property following the brothers’ deaths and the defendants’
stipulation that they had no prior knowledge of the omitted property supports a
finding that Hugh intended to convey this property to Thomas as part of the
original Agreement. Furthermore, the defendants’ reliance on the fact that Hugh
owned other property in Sabine Parish ignores the fact that the deed intended to
convey all of the partnership-owned property in Sabine parish. The disputed
property was adjacent to other partnership property that was inadvertently omitted.
The Skelly Oil ratification further buttresses plaintiffs’ claims that Hugh intended
to convey all of the property included in the Agreement and that the omitted
parcels resulted from mutual error. Accordingly, we find no error in the trial
court’s ruling reforming the Deed and declaring the plaintiffs the sole owners of
the tracts.
14 CONCLUSION
The judgment of the trial court reforming the 1949 Deed to include the
omitted tracts and placing the plaintiffs in full possession of the omitted property is
affirmed. All costs of this appeal are assessed against the defendants-appellants,
Jane Renee Johnson Smith, Trentice Van Johnson, Jr., Robert Hugh Johnson,
Martha Ann Hardee Languirand, Hugh Clark Hinton, and Samual Jackson Hinton.
AFFIRMED.