Dore Energy Corporation v. Kerry M. Massari

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 04-659

DORE! ENERGY CORPORATION

VERSUS

KERRY M. MASSARI, ET AL.

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APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NO. 10-16400
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Oswald A. Decuir,
Judges.

REVERSED.

Lawrence Paul Simon Jr.
LISKOW & LEW IS
P. O. Box 52008
Lafayette, LA 70505
(337) 232-7424
Counsel for: Defendant/Appellant
Kerry M . M assari
Edw ard A. Pratt

Patrick Donavon Gallaugher Jr.
Scofield, Gerard, etc.
P. O. Drawer 3028
Lake Charles, LA 70602
(337) 433-9436
Counsel for: Plaintiff/Appellee
Dore ! Energy Corporation

John C. Guillet
Scofield, Gerard, Veron, Etc.
P. O. Drawer 3028
Lake Charles, LA 70602-3028
(337) 433-9436
Counsel for: Plaintiff/Appellee
Dore ! Energy Corporation

SAUNDERS, J.

This is a suit to cancel a lease. The trial court entered judgment November 19,

2003, cancelling the lease by summary judgment. We reverse.

FACTS

On February 2, 1983, Cameron Meadows Land Company granted a hunting

lease to Kerry M. Massari. The lease was valid for a ten-year term and contained two

options, each to renew for a ten-year period. Subsequently in 1995, Dore! Energy

Corporation (hereafter referred to as Dore!) purchased the land from Cameron

Meadows Land Company. On September 26, 2001, Mr. Massari donated the lease

to Lawrence P. Simon, Jr. and Edward A. Pratt. Dore! was not informed of the

donation until January 2002, when Mr. Simon sent a letter along with the annual rent

payment. Dore! refused to accept the rent from anyone other than Mr. Massari stating

that the donation violated the lease’s non-assignment clause. Dore! requested that the

donation be rescinded. Following this correspondence, the donation was rescinded

and Mr. Massari paid the rent.

Shortly after rescinding the donation, Mr. Massari exercised the option to

renew the lease for another ten-year period. Mr. Pratt paid the annual lease rental in

2003. Upon receipt, Dore! returned the payment to Mr. Pratt. Mr. Pratt then sent

Dore! a letter explaining that Mr. Massari had once again donated the lease to him on

October 16, 2002. Mr. Pratt attached a copy of the donation to the letter he sent

Dore!. On this second donation, Dore! filed suit to cancel the lease.

PROCEDURAL HISTORY

Both parties filed for summary judgment. On November 19, 2003, the court

granted Dore!s motion for summary judgment and cancelled the lease. The court

denied the defendant’s summary judgment motion. Defendants-appellants timely

filed a devolutive appeal.

ASSIGNMENT OF ERRORS

1) Whether the prohibition in the hunting lease against an assignment or
sublease included a prohibition of the donation at issue from Mr.
Massari to Mr. Pratt?

2) If the court finds that the donation is a breach of the lease, does the
resolutory condition in the donation of the hunting lease operate to
rescind the donation?

3) Whether, if this court should find that the donation violates the terms of
the lease and that the resolutory condition is ineffective, the court should
(I) grant the lessee ten (10) days within which to correct the donation by
rescinding the donation, and (II) not declare a termination or
cancellation of the lease unless there is a failure to make such correction
within those ten days?

LAW AND ANALYSIS

The proper standard of review for an appellate court considering summary

judgment is de nova. “Appellate courts review summary judgments de novo. It is

well established that a summary judgment shall be rendered if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to material fact, and that the

mover is entitled to judgment as a matter of law.” Palma, Inc., v. Crane Servs. Inc.,

03-0614, p. 3 (La.App. 3 Cir. 11/5/03), 858 So.2d 772, 774. (Citations Omitted.) The

Louisiana Supreme Court has provided guidance in determining when a fact is

material.

A fact is “material” when its existence or nonexistence may be essential
to plaintiff’s cause of action under the applicable theory of recovery.
“[F]acts are material if they potentially insure or preclude recovery,
affect a litigant’s ultimate success, or determine the outcome of the legal
dispute.” Simply put, a “material” fact is one that would matter on the

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trial on the merits. Any doubt as to a dispute regarding a material issue
of fact must be resolved against granting the motion and in favor of a
trial on the merits.

Davis v. M & E Food Mart, Inc., No. 2, 02-0585, p. 4 (La.App. 3 Cir. 10/30/02), 829

So.2d 1194, 1198 citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.

7/5/94), 639 So.2d 730, 751.

ASSIGNMENT OF ERROR NUMBER ONE

The defendants, Mr. Massari and Mr. Pratt, question whether the prohibition

against an assignment contained in the lease includes a prohibition on donations.

Dore! argues that this donation violates the non-assignment clause of the lease.

The lease states, “. . . this lease may not be assigned or sublet in whole or in part.”

This statement is the basis of Dore!s argument against the donation. Dore! makes

several arguments in support of this. (1) Definitions contained in Black’s Law

Dictionary and Louisiana Civil Code article 3506 include donations as assignments;

(2) Mr. Massari’s affidavit is inadmissible to show the intent of the parties; (3)

Contract provisions must be interpreted in a way that renders them effective and not

ineffective based on Louisiana Civil Code Articles 2048 and 2049.

The defendants propose several theories as to why the prohibition against

assignment does not include a prohibition against donations. (1) Based on Mr.

Massari’s affidavit, the lease was created for pleasure and not for monetary gain and

thus, the clause was meant to prohibit any transfer for the acquisition of money; (2)

This is a predial lease which is heritable and transferrable by the terms of the lease;

(3) Assignment and donation are distinguishable terms, particularly in that a donation

is gratuitous and an assignment is onerous; (4) The lease contains a clause that

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indicates it was meant to be transferrable by donation. “This lease is effective

February 1, 1983 and is binding on the parties hereto, their heirs, successors and

assigns.” Accordingly, as the lease is heritable, it is therefore transferrable by

donation; (5) The Louisiana Civil Code and Louisiana case law supports a finding

that an assignment is different from a donation. Defendants cite former Louisiana

Civil Code Article 1002, which was eliminated in the 1984 revision, but was in effect

at the time of the lease. “The donation, sale, or assignment, which one of the co-heirs

makes of rights of inheritance, either to a stranger or to his co-heirs, is considered to

be, on his part, an acceptance of the inheritance.” La.Civ.Code art. 1002. The

defendants argue that if donation meant the same as an assignment then the Civil

Code drafters would not have specifically listed both.

DISCUSSION

The pivotal issue in this case is whether an assignment includes a donation.

Louisiana Civil Code Article 2047 states, “[t]he words of a contract must be given

their generally prevailing meaning. Words of art and technical terms must be given

their technical meaning when the contract involves a technical matter.” The technical

term at issue is “assigned.” This contract clearly revolves around a technical matter,

i.e., does an assignment include a donation? The clauses at issue in this case are:

“[t]his lease may not be assigned or sublet in whole or in part,” and “[t]his lease is

effective February 1, 1983 and is binding on the parties hereto, their heirs, successors,

and assigns.”

The distinguished Louisiana law expert, Professor Saul Litvinoff, has written

on the nature of an assignment. In the Louisiana Civil Law Treatise on The Law of

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Obligations, Professor Litvinoff draws a clear distinction between assignment and

subrogation. Subrogation and assignment have three main differences.

In the first place, though neither an obligee who subrogates another
person to his right nor one who assigns his rights to another warrants the
solvency of the obligor, an assignment of rights carries an implied
warranty of the existence of the debt.

In the second place, subrogation is effective against third persons,
including the obligor, from the time it takes place, which is expressed by
saying that it produces effects erga omnes, while an assignment of rights
requires notice to the debtor or his express acceptance in order to be
effective against third persons.

In the third place, an assignee may recover from the debtor the full
amount of the assigned claim, regardless of the price he actually paid for
the assignment. . . . [A] subrogee may recover only the amount that he
actually paid to the obligee.

Saul Litvinoff, The Law of Obligations § 11.32, at 283 (Louisiana Civil Law Treatise,

Vol. 5, 1992).

Professor Litvinoff points out several differences between an assignment and

subrogation, but the most relevant for our analysis is the designation of an assignment

as an onerous transaction.

The main consequence of subjecting subrogation by the obligee to the
rules that govern assignment of rights is that, regardless of the amount
he paid to the obligee, the third person, or subrogee, may recover from
the obligor the full amount originally owed by the obligor to the obligee.
As shown before, traditional law provided a different solution that only
allowed the third person to recover the amount he had actually paid to
the obligee. That was so because the pertinent provisions of the
traditional civil codes contemplate assignment of rights as an
onerous transaction from which the third person intends to derive
profit by buying the obligee’s credit, no doubt for less than its face
value, while subrogation by the obligee has traditionally been
regarded as resulting from an act gratuitous on the part of the third
person, or subrogee, who pays the obligor’s debt because he wants to
help him and not for the purpose of making any profit.

Saul Litvinoff, The Law of Obligations § 11.34, at 284 (Louisiana Civil Law Treatise,

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Vol. 5, 1992) (emphasis added). This in-depth analysis provided by Professor

Litvinoff references the traditional comprehension of assignments as onerous

transactions.

We note that articles in the Louisiana Civil Code and Louisiana case law

dovetail with Professor Litvinoff’s analysis. In Louisiana Civil Code Article 2652,

a sale is equated to an assignment.

Sale of Litigious Rights:

When a litigious right is assigned, the debtor may extinguish his
obligation by paying to the assignee the price the assignee paid for the
assignment, with interest from the time of the assignment.

La.Civ.Code art. 2652. The use of the terms “sale” in the title and “assigned” in the

text of the article suggest an appreciation by the redactors of the similarities between

the two types of conveyances as, indeed, they are used interchangeably in this

instance.1

The delineating characteristic of an assignment is that it is an onerous

transaction and it is between an assignor and assignee. Assignments and donations

are both methods of transferring ownership, but the defining difference is that a

donation is gratuitous, where an assignment is onerous. A donation is a transaction

that is “purely gratuitous, or that which is made without condition and merely from

liberality.” La.Civ.Code art. 1523. The code establishes only one way to dispose of

property gratuitously, and that is by donation, not assignment. “Property can neither

1

In analyzing this article we observed that the code uses the terms “sale” and “assigned” interchangeably in the text and
in the title. W e are, however, fully aware that titles of articles do not constitute law. “Headings to sections, source notes
and cross references are given for the purpose of convenient reference and do not constitute part of the law.” La.Rev.
Statutes 1:13. W e further note that recently the Louisiana Supreme Court stated, “[a]lthough we recognize that the title
of a statute is not the law, we can look to the title to get a general understanding of the meaning of the statute’s words.”
Dufrene v. Video Co-op & La. Workers’ Compensation Corporation, 02-1147, p. 11 (La. 4/9/03) 843 So.2d 1066, 1073.

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be acquired nor disposed of gratuitously, unless by donations inter vivos or mortis

causa, made in the forms hereafter established.” La.Civ.Code art. 1467.

This distinction between donations and assignments is further evidenced in the

code by the following language, “[r]ights and obligations arising from a contract are

heritable and assignable unless the law, the terms of the contract or its nature

preclude such effects.” La.Civ.Code art. 1984 (emphasis added). The drafters’

choice of words in article 1984, clearly indicate an intent to distinguish donations

from assignments because for something to be heritable it must be capable of being

donated, and donations are gratuitous. Under this article, contracts may be donated

or assigned unless the contract contains provisions to the contrary. Moreover, this

article also supports the appellants’ position that donations and assignments are

separate, distinct modes of transferring ownership as suggested through prior

Louisiana Civil Code Article 1002. “The donation, sale, or assignment, which one

of the co-heirs makes of rights of inheritance, either to a stranger or to his co-heirs,

is considered to be, on his part, an acceptance of the inheritance.” La.Civ.Code art.

1002. These articles support Professor’s Litvinoff’s position that an assignment is an

onerous transaction and also the appellants’ contention that an assignment is not all

inclusive as it does not include donations.

We note further that the code articles dealing with assignments appear in Title

VII entitled SALES, and not in Title II, the book of DONATIONS. It is evident

from the placement of the code articles that the redactors recognized “assignment”

and “donation” to be different forms of conveyance, as the only time assignment is

used is in the articles on sales. The code treats the two concepts as separate and

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distinct modes of transferring ownership.

Professor Litvinoff’s writings establish that assignments have traditionally

been associated with onerous transactions. This distinction has also been recognized

in Louisiana jurisprudence with courts drawing a distinction between assignments

and donations and equating assignments with sales. “Therefore, this court concludes

that, under Louisiana law, a victim’s personal injury right is strictly personal.

Because it is strictly personal, it may not be donated or assigned.” Covert v. Liggett

Group, Inc., 750 F.Supp. 1303, 1309 (M. D. La. 1990). Clearly if assign included

donation, then the courts would not continue to differentiate between the two by

including both terms. Also in Succession of Bernice Addison Brumfield v. Brumfield,

96-7508 (M.D. La. 1998) 1998 WL 834999, the court stated, “[s]ince Noel A.

Brumfield executed the renunciation in exchange for the valuable consideration

mentioned above, it follows that such a transaction was a sale or assignment of Noel’s

rights in the succession.” This case suggests that sale and assignment are analogous

in that each is an onerous conveyance.

In Berwick Mud Co., v. Stansbury, 205 So.2d 147, 149 (La.App. 3 Cir. 1967)

this court stated, “[i]t is well settled that the assignment of a lease is a sale of a real

right.” Also, in Mire v. Sunray DX Oil Co., 285 F.Supp. 885, 890 (W.D. La. 1968),

the court noted that “[t]o sublease is to lease in whole or in part the thing of which

one is the lessee, with reservation of an interest in it by the original lessee, or

sublessor; while to assign a lease is to sell it.” Thus, we see that both the drafters of

the Civil Code and the Jurisprudence of our courts recognize the distinction between

donations and assignments.

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Dore!s primary contention is that an assignment includes a donation based on

Black’s Law Dictionary and the Louisiana Civil Code Article 3506. Dore! argues that

the Civil Code’s definition of assigns covers all types of transfer. “Assigns means

those to whom rights have been transmitted by particular title; such as sale, donation,

legacy, transfer or cession.” La.Civ.Code art. 3506. Dore! relies on Black’s Law

Dictionary to provide definitions for the terms assignment and assignor. An

assignment is defined as “[t]he transfer of rights or property.” Black’s Law

Dictionary 115 (7th Ed. 1999). Assignor is defined as “[o]ne who transfers property

rights or powers to another.” Id. at 116.

Dore!s reliance on these definitions is misplaced, as these definitions do not

suggest that an assignment includes a donation. Nothing in the definition of

assignment alludes to acts of gratuity, and this is the critical distinction between an

assignment and a donation. The plaintiffs also fail to cite any jurisprudence that

supports their arguments which are based solely on their analysis of Black’s Law

Dictionary and Louisiana Civil Code Article 3506. We find these arguments

unpersuasive.

It follows from the preceding discussion that Mr. Massari did not violate the

terms of the contract by donating the property to Mr. Pratt. The contract at issue only

eliminated the lessee’s ability to assign the lease – not to donate it. This contract

clearly contemplated a type of donation as it provided for a continuous effect on Mr.

Massari’s heirs. “This lease is effective February 1, 1983 and is binding on the

parties hereto, their heirs, successors, and assigns.” Had the parties intended to

prevent donations, they would have specifically forbidden it in the clause setting forth

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the parameters of the lessee’s rights, but the clause only prohibited an assignment and

a sublease.

Therefore, this court finds that an assignment does not include a donation, and

thus the donation is not prohibited by the terms of the contract. Accordingly, the

donation is valid and binding on the parties.

ASSIGNMENTS OF ERROR NUMBER TWO AND THREE

The defendants argue that if the court finds the donation to be a breach, then

the resolutory condition should operate to rescind the donation. The defendants also

request ten days to cure the breach. However, as we have determined that an

assignment does not include a donation, we need not discuss these remaining issues.

CONCLUSION

We therefore reverse the trial court’s decision that the donation violated the

non-assignment clause, and find that the donation is valid. We reverse the trial

court’s grant of summary judgment in favor of Dore!/appellee and grant summary

judgment in favor of the defendants/appellants. Costs of this appeal are assessed to

Dore!/appellee.

REVERSED.

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