Danny Ray Gilcrease v. Maximus Operating, Ltd.

Judgment rendered October 1, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,300-CW

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

DANNY RAY GILCREASE Plaintiff-Respondent

versus

MAXIMUS OPERATING, LTD., Defendants-
ET AL Respondents

*****

On Application for Writs from the
Second Judicial District Court for the
Parish of Bienville, Louisiana
Trial Court No. 45,382

Honorable Charles Glenn Fallin, Judge

*****

FISHMAN HAYGOOD, LLP Counsel for
By: Loretta Gallaher Mince Defendants-Applicants,
Harvey Sylvanous Bartlett, III Gary Hunt, III, LLC;
Laskey-Davis Properties,
LLC; TMH Minerals,
LLC; Martha Hunt
Givhan, LLC; and
Elizabeth Hunt Wallace,
LLC

WILLIAM E. BYRAM LTD., APLC Counsel for
By: William Edward Byram Plaintiff-Respondent

C. GARY MITCHELL, APLC
By: Calton Mitchell

AYRES, SHELTON, WILLIAMS,
BENSON & PAINE, LLC
By: Lee H. Ayres

FLOWERS DAVIS, PLLC
By: John Charles Dalton Griffin

PETTIETTE, ARMAND, DUNKELMAN, Counsel for
NELSON & HAMMONS, APLC Defendants-Respondents,
By: Donald James Armand Jr. Maximus Operating
Joshua Phillip Monteleone LTD, St Paul Fire &
Marine Insurance
Company and Key
Exploration Ltd

COLVIN, SMITH, MCKAY & BAYS Counsel for
By: James Henry Colvin, Jr. Defendant-Respondent,
Daniel N. Bays, Jr. Peterson Contractors Inc.

GALLOWAY JOHNSON, Counsel for
TOMPKINS, BURR & SMITH, PLC Defendant-Respondent,
By: Timothy William Hassinger Sewell Drilling, LLC
Patrick Joseph Schepens
Joshua Henry Dierker

KEAN MILLER, LLP Counsel for
By: Scott Louis Zimmer Defendant-Respondent,
Stallion Oilfield Services
LTD

COOK, YANCEY, Counsel for
KING & GALLOWAY, APLC Defendant-Respondent,
By: Brian Allen Homza Crum and Forster
Jay Michael Lonero Indemnity Company
Pamela Suzanne Gautier
Angie A. Akers

LUGENBUHL, WHEATON, Counsel for
PECK, RANKIN & HUBBARD Defendants-Respondents,
By: Kristopher M. Redmann Evanston Insurance
Seth Andrew Schmeeckle Company; Jewel
Kevin Michael McGlone Wayne Greer; and
Wayne
Greer, LLC

WATSON, BLANCHE, Counsel for
WILSON & POSNER, LLP Defendant-Respondent,
By: Chris James LeBlanc Bitco General Insurance
Company

KEAN MILLER, LLP Counsel for
By: Zoe Wilde Vermeulen Defendant-Respondent,
MS Directional, LLC

MELCHIODE, MARKS, Counsel for
KING, LLC Defendant-Respondent,
By: Kevin Andrew Marks New Park Drilling
James Jerauld Reeves, II Fluids, LLC

CHARLES TAUNTON Counsel for
MELVILLE, LLC Defendants-Respondents,
Jeffrey Scott Payton,
Michael Lewis Payton,
Lisa Carol Payton
Bennett, Julie Elizabeth
Payton Hill, Nelwyn E.
Thompson Wemple,
Don G. Thompson,
Jack V. Thompson and
Martha Colquitt
Whitehead

*****

Before STONE, THOMPSON, and HUNTER, JJ.

HUNTER, J.

The trial court denied a peremptory exception of prescription filed by

defendants, Gary Hunt III, LLC, Elizabeth Hunt Wallace, LLC, Martha Hunt

Givhan, LLC, TMH Minerals, LLC, and Laskey-Davis Properties, LLC.

Defendants sought supervisory review of the ruling, and this Court granted

defendants’ writ application to review the correctness of the district court’s

ruling. For the following reasons, we conclude the judgment below does not

require the exercise of this Court’s supervisory authority. Accordingly, we

recall the writ as improvidently granted, deny the writ application, and

remand this matter for further proceedings.

FACTS

Plaintiff, Danny Ray Gilcrease, is the owner of 88 acres of land in

Bienville Parish. Plaintiff’s property includes a residence and a five-acre

spring-fed pond; the pond contains dam overflow capabilities and was

stocked with game fish native to Louisiana. The property adjacent to

plaintiff’s tract is owned by Tanos Exploration II, LLC (“Tanos tract”).

According to plaintiff, “an authorized representative of Tanos and/or a

mineral lessee authorized the drilling of a natural gas well on the property.”

On December 26, 2019, plaintiff filed a petition for damages against

Maximus Operating, LTD, Sewell Drilling LLC, and Stallion Oilfield

Services, LTD, claiming contamination of his property because of drilling

operations on the Tanos tract. Plaintiff alleged that after the drilling

operations took place December 13-29, 2018, he noticed a sheen on his pond

on December 26, 2018, and he discovered numerous dead fish in the pond

on January 1, 2019. According to plaintiff, he traced the source of the sheen

to the well site. Specifically, plaintiff alleged that there was a breach of the

reserve pit on the well site which led to the contamination of his property

and pond.

Plaintiff filed amended petitions on March 19, 2020, and on October

11, 2022. Thereafter, on December 4, 2023, plaintiff filed a third amended

petition, adding as defendants the owners of mineral servitudes underlying

his property, including Gary Hunt III, LLC, Elizabeth Hunt Wallace, LLC,

Martha Hunt Givhan, LLC, TMH Minerals, LLC and Laskey-Davis

Properties, LLC (“the Hunt Servitude Defendants”) who are the applicants in

this writ application. The third amended petition separated the various

defendants into the “Tortfeasor Defendants,” which now included Key

Exploration, LTD and various insurers of the lessee and the operators, and

the “Servitude Defendants,” including the Hunt Servitude Defendants.

In the third amended petition, plaintiff alleged that his property was

originally owned by George Kemp, who had executed a mineral lease, in

favor of Lion Oil Refining Oil (“the Kemp lease”), and through various

conveyances, Wildhorse Resources II, LLC became the lessee, and

subsequently, Key became the lessee. However, according to plaintiff, the

assignment from Wildhorse to Key, which was attached to the petition,

transferred the mineral lease for the adjacent Tanos tract, not the Kemp lease

on plaintiff’s property. Plaintiff further alleged that Kemp conveyed all of

his mineral interests in the property via four mineral servitudes, one of

which is currently owned by the Hunt Servitude Defendants. Additionally,

he alleged that Key was the mineral lessee of the Tanos tract, and Maximus

was the operator of all of Key’s mineral properties, including the Tanos

tract. According to plaintiff, Maximus began drilling the well “on the Tanos

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tract from an elevated well site location that was located partly on the Tanos

tract and partly on the Gilcrease property.”

In response to the third amended petition, the Hunt Servitude

Defendants filed an exception of no cause of action on the basis that the

third amended petition attached documents showing that the work performed

by the operators was not under the Kemp lease that burdened the Hunt

Servitude Defendants’ mineral rights. Thereafter, plaintiff performed

additional title research, and on August 16, 2024, he filed a fourth amended

petition. In that petition, plaintiff removed the reference to the Wildhorse

assignment in favor of a separate assignment from Samson Contour Energy

E&P, LLC to Key for the Kemp lease on plaintiff’s property. In the fourth

petition, plaintiff alleged that the well pad covers his property and the Tanos

tract, and that the well site, the well bore, and the reserve pit from which the

contamination emanated are located primarily on plaintiff’s property. More

specifically, plaintiff alleged:

The Tortfeasor Defendants and Servitude Defendants are liable
unto Petitioner under La. C.C. arts. 667, 668, 669, and 2315 and
[La. R.S. 31:11]. Additionally, the Servitude Defendants are
liable to restore the surface of the Property to its original
condition pursuant to [La. R.S. 31:22].
***
Additionally, the Well was drilled on the Property which is
subject to the [Kemp] Lease. The Servitude Defendants are the
Lessor[s] of the Lease and Key is the lessee. The operations of
Defendant Key on the Property are an exercise of its right to
explore for minerals pursuant to the Lease which is an
appendage of the Servitude Defendant[s’] right of ingress and
egress on the Property to explore for minerals. Accordingly,
Key and Maximus’ operations on the Property are an exercise
of the Servitude Defendants[’] mineral servitude. As the
owners of the mineral servitude covering the Property, the
Servitude Defendants are “obligated, insofar as practicable, to
restore the surface to its original condition at the earliest
reasonable time.”

3

On September 3, 2024, the Hunt Servitude Defendants filed an

exception of prescription.1 The district court denied the exception of

prescription without providing reasons. The Hunt Servitude Defendants

filed an application for supervisory review, and by order dated February 28,

2025, this Court granted the writ to docket.

DISCUSSION

The Hunt Servitude Defendants contend the district court erred in

denying the exception of prescription. They argue that plaintiff did not add

them as defendants until the third amended petition, which was filed almost

five years after he noticed the damage to his property; therefore, prescription

is evident on the face of the petition. The Hunt Servitude Defendants also

argue that the third amended petition does not relate back to the filing of the

original petition, and plaintiff cannot establish that they received notice of

the original petition or that they are not a wholly new or unrelated defendant,

noting the distinct positions of a mineral servitude owner and a mineral

lessee.

Contrarily, plaintiff contends his claims have not prescribed, and the

Hunt Servitude Defendants and the Tortfeasor Defendants are both liable for

the restoration and remediation of the property. According to plaintiff, the

Hunt Servitude Defendants are solidary obligors with the Tortfeasor

Defendants, specifically including Key; therefore, the lawsuit filed against

the Tortfeasor Defendants interrupted prescription against the Hunt

1
The exception of no cause of action filed by the Hunt Servitude Defendants was
denied. However, in the writ application, the Hunt Servitude Defendants only sought
review of the denial of the exception of prescription.

4

Servitude Defendants. Further, plaintiff argues that prescription has not

begun to run on the Hunt Servitude Defendants’ restoration obligations

under La. R.S. 31:22 because their servitude has not been terminated.

In response to plaintiff’s argument, the Hunt Servitude Defendants

maintain that plaintiff did not make any allegations tending to support his

theory of solidary liability until he filed the fourth amended petition, in

which he alleged, for the first time, that the Tortfeasor Defendants’

operations were performed pursuant to the Kemp lease. The Hunt Servitude

Defendants claim that without timely allegations that the Tortfeasor

Defendants’ conduct was on behalf of the servitude owners, and therefore

was an exercise of the servitude, then there are no allegations on which to

base an argument that solidary liability interrupts prescription. The Hunt

Servitude Defendants further assert that it is unclear whether the liability

between the Tortfeasor Defendants and the Servitude Defendants is solidary

because the Servitude Defendants’ obligation to restore the surface at the

earliest reasonable time is not the same as the Tortfeasor Defendants’ duty to

act as reasonably prudent operators and correct contamination immediately.

Further, the Hunt Servitude Defendants argue that plaintiff failed to provide

any support for his allegation that claims against mineral servitude owners

are imprescriptible as long as the servitude remains in place. They note that

while the obligation to restore property continues as long as the servitude

exists, a claim for breach of that obligation must be exercised at the earliest

reasonable time.

A mineral lessee may be liable to damages in tort if it fails to exercise

its rights with reasonable regard for those of others. See, La. C.C. art. 667;

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La. R.S. 31:11; La. R.S. 31:22; La. R.S. 31:122. 2 A mineral servitude

owner is liable to the surface owner for damages caused by its lessee’s oil

and gas operations on the leased property. Dupree v. Oil, Gas & Other

Minerals, 31,869 (La. App. 2 Cir. 5/5/99), 731 So. 2d 1067.

Claims arising under La. C.C. art. 667 and the Mineral Code are tort

claims. Lejeune Bros. v. Goodrich Petroleum Co., 06-1557 (La. App. 3 Cir.

11/28/07), 981 So. 2d 23, writ denied, 08-0298 (La. 4/4/08), 978 So. 2d 327;

Ashby v. IMC Exploration Co., 496 So. 2d 1334 (La. App. 3 Cir. 1986).

2
La. C.C. art. 667 provides, in relevant part:

Although a proprietor may do with his estate whatever he pleases, still he
cannot make any work on it, which may deprive his neighbor of the liberty
of enjoying his own, or which may be the cause of any damage to him.
However, if the work he 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.

La. R.S. 31:11(A) 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.

La. R.S. 31:22 provides:

The owner of a mineral servitude is under no obligation to exercise it. If
he does, he is entitled to use only so much of the land as is reasonably
necessary to conduct his operations. He is obligated, insofar as
practicable, to restore the surface to its original condition at the earliest
reasonable time.

La. R.S. 31:122 establishes the obligations of a mineral lessee as follows:

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.

6

At the time of this claim, delictual actions were subject to a liberative

prescription of one year. This prescription commences to run from the day

injury or damage is sustained. La. C.C. art. 3492.

Ordinarily, the party pleading prescription bears the burden of proving

that the claim has prescribed; however, when prescription is evident on the

face of the pleadings, the burden shifts to the plaintiff to show that the action

has not prescribed. Higgins v. Russell, 55,624 (La. App. 2 Cir. 5/22/24), 386

So. 3d 1236. When no evidence is submitted at the hearing on the

exception, the exception of prescription must be decided upon the facts

alleged in the petition with all of the allegations accepted as true. In that

case, the reviewing court simply assesses whether the trial court was legally

correct in its finding. Mitchell v. Baton Rouge Orthopedic Clinic, L.L.C.,

21-00061 (La. 10/10/21), 333 So. 3d 368.

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. La. C.C.P. art. 1153. The purpose of La.

C.C.P. art. 1153 is to allow amendment of pleadings despite technical

prescriptive bars when the original pleading gives the parties fair notice of

the general fact situation out of which the amended claim or defense arises.

While article 1153 does not specifically refer to parties, it does provide a

means for determining when an amendment adding a plaintiff or defendant

relates back to the date of an earlier filed pleading for prescriptive purposes.

Bryant v. Tokio Marine HCC, 54,771 (La. App. 2 Cir. 11/16/22), 351 So. 3d

837. The doctrine of relation back of amended pleadings should be liberally

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applied, particularly in the absence of prejudice. Gamble v. Gamble, 54,595

(La. App. 2 Cir. 1/18/23), 354 So. 3d 864.

An amendment adding or substituting a party relates back to a timely

filed petition if: (1) the amended claim arises out of the same conduct,

transaction, or occurrence set forth in the original petition; (2) the substitute

defendant received notice of the institution of the action such that he will not

be prejudiced in preparing and conducting his defense; (3) the substitute

defendant knows or should know that but for a mistake concerning the

identity of the proper party defendant, the action would have been brought

against him; and (4) the substitute defendant is not a wholly new or

unrelated defendant. Ray v. Alexandria Mall, Through St. Paul Prop. &

Liab. Ins., 434 So. 2d 1083 (La. 1983); Allstate Ins. Co. v. Doyle Giddings,

Inc., 40,496 (La. App. 2 Cir. 1/25/06), 920 So. 2d 404, writ denied, 06-0425

(La. 4/28/06), 927 So. 2d 294.

La. C.C.P. art. 1153 typically applies to determine if a supplemental

petition relates back to the original in situations where the wrong party has

been named as the original defendant, and not when additional solidary

obligors are named. La. C.C.P. art. 1153 is inapplicable when a plaintiff has

timely sued and correctly named at least one solidary obligor. Etienne v.

National Auto. Ins. Co., 99-2610 (La. 4/25/00), 759 So. 2d 51.

In the instant case, plaintiff alleged he “noticed a sheen on the pond

on December 26, 2018,” and he “discovered on January 1, 2019, that there

were numerous dead fish in the pond.” Plaintiff filed the original petition on

December 26, 2019. However, the Hunt Servitude Defendants were not

added as defendants until December 4, 2023, nearly five years after plaintiff

discovered the damage to his property. Because the claims against the Hunt
8

Servitude Defendants are tort claims subject to a one-year prescriptive

period, they are prescribed on the face of the petition. Thus, plaintiff has the

burden of proving that his claims have not prescribed.

Prescription is interrupted by the commencement of suit against the

obligor in a court of competent jurisdiction and venue. La. C.C. art. 3462.

The interruption of prescription by suit against one solidary obligor is

effective as to all solidary obligors. La. C.C. arts. 1799 and 3503. An

obligation is solidary for the obligors when each obligor is liable for the

whole performance. A performance rendered by one of the solidary obligors

relieves the others of liability toward the obligee. La. C.C. art. 1794. An

obligation may be solidary though it derives from a different source for each

obligor. La. C.C. art. 1797.

In Walton v. Burns, 47,388 (La. App. 2 Cir. 1/16/13), 151 So. 3d 616,

this Court explained the distinction between the duties of a mineral servitude

owner and a mineral lessee as follows:

Although their right is the same, the servitude owner has the
duty to restore the surface to its original condition whereas the
lessee has the duty to act in good faith and to develop and
operate the property as a reasonably prudent operator. In
[Marin v. Exxon Mobil Corp., 09-2368 (La. 10/19/10), 48 So.
3d 234], the supreme court held that the “prudent operator
standard” of Art. 122 incorporates the “duty to remediate
oilfield contamination” if the lessee has operated “unreasonably
or excessively.” Id. at 37-38, 48 So. 3d at 259-260. The court
called this the lessee’s “additional restoration duty to correct the
contamination,” and explained that it “does not necessarily
mean that the lessee has the duty to restore the land to pre-lease
condition,” which would be the servitude owner’s duty under
Art. 22. Id. This distinction, though perhaps subtle, reflects the
reality that the lessee and mineral servitude owner are not
totally in the same position. The court in Marin recognized that
current contamination adversely affects the surface owner’s
present use of the land and is different from the ordinary wear
and tear from ongoing use by a reasonably prudent operator.

9

We also note that a special statute, La. R.S. 30:29 (also known
as “Act 312”), creates a special procedure to resolve claims of
environmental damage arising from oilfield operations. Act
312 applies to actions under Title 31, the Mineral Code. M.J.
Farms Ltd. v. Exxon Mobil Corp., 07-2371 (La. 7/1/08), 998
So. 2d 16. Notably, § 29 C(1) provides that if the finder of fact
determines that environmental damage exists and determines
the party or parties who cause the damage, then the court shall
order those parties “whom the court finds legally responsible
for the damage” to develop a plan of remediation. Although the
application of Act 312 is not an issue here, it underscores the
fact that different defendants—lessees, operators, servitude
owners—may have different obligations to evaluate and remedy
contamination. The interests of justice are not served when a
concerned party is excluded from the litigation.

[T]he remediation owed by all defendants might ultimately be
the same[, but the servitude owners’] obligation to restore the
surface at the earliest practicable time is not the same as the
other defendants’ duty to act as reasonably prudent operators,
including a duty to correct contamination immediately, if the
contamination is interfering with the plaintiffs’ use of the
surface.

In his concurring opinion in Walton v. Burns, supra, Judge Caraway

explained that the mineral servitude owner and the mineral lessee have a

coextensive obligation for the same restoration duty to the surface owner,

making the solidary obligors.

Thus, the operators of the well are liable under general principles of

tort; Key, as the mineral lessee, is liable under the Mineral Code to operate

the property as a reasonably prudent operator, including a duty to remediate

contamination; and the Hunt Servitude Defendants are liable under the

Mineral Code to restore the surface to its original condition. Although these

obligations are slightly different and arise under different sources, the

remediation owed by the Hunt Servitude Defendants and the Tortfeasor

Defendants might ultimately be the same.

10

We make no findings as to liability. Nonetheless, applying the

rationale set forth in Walton v. Burns, supra, the mineral servitude owner

and the mineral lessees have coextensive obligations; therefore, they may be

solidary obligors as alleged. Consequently, if they are, in fact, solidarily

liable, the timely claims against Maximus Operating, LTD, Sewell Drilling

LLC, and Stallion Oilfield Services, LTD, interrupted prescription as to the

Hunt Servitude Defendants. Therefore, we recall the application for

supervisory review as improvidently granted and deny the writ application.

CONCLUSION

Based on the foregoing, the writ is recalled as improvidently granted,

the writ application is denied, and the matter is remanded for further

proceedings. All costs are assessed to defendants, Gary Hunt III, LLC,

Elizabeth Hunt Wallace, LLC, Martha Hunt Givhan, LLC, TMH Minerals,

LLC, and Laskey-Davis Properties, LLC.

WRIT RECALLED; WRIT APPLICATION DENIED;
REMANDED FOR FURTHER PROCEEDINGS.

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