Kinder Gas, Inc. v. Gerald B. Reynolds

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1012

KINDER GAS, INC.

VERSUS

GERALD B. REYNOLDS
AND MARY J. KAUFFMANN

**********

APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2010-122, DIVISION “A”
HONORABLE JOEL G. DAVIS, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

**********

Court composed of Oswald A. Decuir, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED.

Donald D. Akers, Jr.
Gibbens & Stevens
222 W. St. Peter Street
New Iberia, LA 70560
(337) 367-8451
COUNSEL FOR DEFENDANTS/PLAINTIFFS IN
RECONVENTION/APPELLANTS:
Gerald B. Reynolds, Robin Reynolds Lipari,
Nancy Reynolds Landry, and Mary J. Kaufmann

Gladstone N. Jones, III
Eberhard D. Garrison
Kevin E. Huddell
H.S. Bartlett III
Andrew Jacoby
Jones, Swanson, Huddell & Garrison, LLC
601 Poydras Street, Suite 2655
New Orleans, LA 70130
(504) 523-2500
COUNSEL FOR DEFENDANTS/PLAINTIFFS IN
RECONVENTION/APPELLANTS:
Gerald B. Reynolds, Robin Reynolds Lipari,
Nancy Reynolds Landry, and Mary J. Kaufmann

W. Jay Luneau
Luneau Law Office
1239 Jackson Street
Alexandria, LA 71301-6900
(318) 767-1161
COUNSEL FOR DEFENDANTS/PLAINTIFFS IN
RECONVENTION/APPELLANTS:
Gerald B. Reynolds, Robin Reynolds Lipari,
Nancy Reynolds Landry, and Mary J. Kaufmann

Craig Ray Hill
Jones & Hill
Post Office Box 1260
Oberlin, LA 70655
(337) 639-2127
COUNSEL FOR PLAINTIFF/DEFENDANT IN
RECONVENTION/APPELLEE:
Kinder Gas, Inc.

Morgan J. Well, Jr.
Lee M. Peacocke
Larzelere Picou Wells Simpson Lonero, LLC
3850 N. Causeway Blvd., Suite 1100 – Two Lakeway Center
Metairie, LA 70002
(504) 834-6500
COUNSEL FOR PLAINTIFF/DEFENDANT IN
RECONVENTION/APPELLEE:
Kinder Gas, Inc.

Paul J. Tellarico
Neblett, Beard & Arsenault
Post Office Box 1190
Alexandria, LA 71309-1190
(318) 487-9874
COUNSEL FOR DEFENDANT IN
RECONVENTION/APPELLEE:
Hunt Dominion Corporation

Joseph Ralph White
Stella C.C. Shackelford
Sharon L. Andrews
The White Law Firm
650 Poydras Street, Suite 2319
New Orleans, LA 70130
(504) 799-2585
COUNSEL FOR DEFENDANT IN
RECONVENTION/APPELLEE:
Hunt Dominion Corporation

Matthew J. Randazzo, III
Christopher B. Bailey
Demarcus J. Gordon
Gordon, Arata, McCollam, Duplantis & Eagan, LLC
201 St. Charles Ave., 40th Floor
New Orleans, LA 70170-4000
(504) 582-1111
COUNSEL FOR DEFENDANT IN
RECONVENTION/APPELLEE:
Rosewood Resources, Inc.

Stuart T. Welch
Joe B. Norman
Joseph I. Giarrusso III
Katherine Seegers Roth
Elisabeth Lorio Baer
Liskow & Lewis, APLC
One Shell Square
701 Poydras Street, Suite 5000
New Orleans, LA 70139-5099
(504) 581-7979
COUNSEL FOR DEFENDANT IN
RECONVENTION/APPELLEE:
XH, LLC

GENOVESE, Judge.

In this property contamination case, the landowners appeal the trial court‟s

grant of the exceptions of prescription and prematurity filed on behalf of the oil,

gas, and mineral lessees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Oliver B. Reynolds and Hunt Petroleum Corporation (Hunt Petroleum)

entered into a surface lease on August 27, 1960, involving fifteen acres of property

in Kinder, Louisiana. Upon the death of Mr. Reynolds, his children, Gerald B.

Reynolds and Mary J. Kaufmann,1 succeeded him as the landowners and lessors of

the property. Gerald B. Reynolds subsequently made a donation of a portion of his

ownership interest in the property to his two daughters, Robin Reynolds Lipari and

Nancy Reynolds Landry. Additionally, Hunt Petroleum was succeeded as lessee of

the property by Hunt Dominion Corporation, Rosewood Resources, Inc., and XH,

LLC (collectively, the Hunt entities), which entities later sold their interest in the

lease to Kinder Gas Processing Corporation. Kinder Gas Processing Corporation,

in turn, transferred its interest to Kinder Gas, Inc. (Kinder Gas), the Plaintiff and

Defendant in Reconvention in the instant matter.

In March of 2010, Kinder Gas filed a Petition for Declaratory Judgment,

seeking a declaration of “its rights, status and legal remedies” relative to the lease,

naming as Defendants, Gerald B. Reynolds and Mary J. Kaufmann. In addition to

other relief sought therein, Kinder Gas sought declaratory relief in the form of:

a judgment declaring that [P]laintiff/lessee shall not be liable unto
lessor for any damage caused by lessee‟s operation on said leased
property and further that lessee shall not be required to do any work
regarding restoring the leased premises to a condition other than that
condition in which the property is at at the time of termination and
after removal of such instillations therefrom pursuant to the contract.
1
Though Defendant‟s name is listed as “Kauffmann” in the caption of these proceedings,
this court notes that the spelling given in the Answer and Reconventional Demand filed on her
behalf is “Kaufmann.”

On March 25, 2010, Gerald B. Reynolds and Mary J. Kaufmann filed an

Answer and Reconventional Demand asserting that the subject “[l]ease has been

cancelled as a result of [P]laintiff‟s breaches thereof.” Joining as Plaintiffs in

Reconvention were Nancy Reynolds Landry and Robin Reynolds Lipari 2

(collectively, the Reynolds Family). Named as Defendants in Reconvention were

XTO Energy, Inc., the Hunt entities, 3 and Kinder Gas (collectively, the Gas

Company Defendants).4 That pleading alleges, in relevant part:

Over the past sixty years[,] the Gas Company Defendants have
constructed and operated various facilities on the property, including a
main absorber, rich oil de-ethanizer, depropanizer, debutanizer, still,
recompression-refrigeration units, storage tanks, truck loading
facilities, and gas dehydrators.

....

7.

The Reynolds Family seeks judgment against Kinder Gas, Inc.
and the other Gas Company Defendants finding them liable for all
damages to the property.

8.

The Reynolds Family‟s property has been damaged by the Gas
Company Defendants‟ gas processing operations and by the spillage
and/or disposal of toxic wastes on, in, and adjacent to the Reynolds
Family‟s property. This spillage and/or disposal, which has not been
removed, occurred without [t]he Reynolds Family‟s consent.

2
The record contains some apparent procedural errors which were not raised in the trial
court and are not relevant for purposes of this appeal. For example, although these individuals
were not named as defendants in the Petition for Declaratory Judgment, they became parties to
the litigation by initially appearing as Plaintiffs in Reconvention in the Answer and
Reconventional Demand. We simply note same for the purpose of clarity in our identification of
the parties.
3
Again, for purposes of clarity in this opinion, we note that these entities were initially
brought into the litigation as Defendants in Reconvention; however, this too is a procedural error,
as these claims should have been instituted via third party demands.
4
The Reconventional Demand asserts that “[t]he Gas Company Defendants are lessees,
assigns, joint venturers, and/or interest owners of the Lease Agreement, and are liable jointly and
solidarily for all damages claimed herein.” The claims against XTO Energy, Inc. were
subsequently dismissed without prejudice.
2

9.

The Gas Company Defendants knew or should have known that
their day-to-day operations on the property would cause the soil,
surface waters, and groundwater of the Reynolds Family‟s property to
be contaminated with the hazardous and toxic substances. The Gas
Company Defendants‟ failure to timely remove or remediate this toxic
pollution in the soils and groundwater of the Reynolds Family‟s
property has allowed the pollution to migrate and spread, thereby
causing damages, including but not limited to contaminated soil and
groundwater.

The Reynolds Family alleged that the Gas Company Defendants are liable in tort

for the damages that their actions caused under a theory of strict liability and that

their actions “created a continuing, ongoing and damaging nuisance to the

Reynolds Family and their property. Further, the continued presence of wastes on

the Reynolds Family‟s lands constitutes a continuing trespass.” In addition to the

tort claims asserted, the Reynolds Family alleged that the conduct of the Gas

Company Defendants “constitutes a breach of the [l]ease” and has also breached

“those standards imposed by the Louisiana Civil Code governing the conduct of

prudent lessees.”

In response to the reconventional demand, the Gas Company Defendants

plead various defenses, exceptions, and motions for summary judgment.

Particularly, and relevant to the present appeal, the Gas Company Defendants filed

exceptions of prescription relative to the tort claims asserted by the Reynolds

Family and exceptions of prematurity relative to the breach of contract claims.

Following a hearing on these exceptions, the trial court entered a judgment on May

31, 2011, dismissing the Reynolds Family‟s tort claims as prescribed, dismissing

the Reynolds Family‟s contract claims as premature, and denying all other

exceptions and motions for summary judgment as moot. The Reynolds Family

appeals.

3

ASSIGNMENTS OF ERROR

The Reynolds Family presents the following assignments of error for our

review:

1. The district court erred in granting the [G]as [C]ompany
[D]efendants‟ exception[s] of prescription as to the Reynolds
[F]amily‟s tort claims on its finding that the Reynolds [F]amily had
“requisite knowledge of possible contamination on or before January
14, 2008,”[ ] when there is no evidence that the Reynolds [F]amily had
actual or constructive knowledge of actual or appreciable damages
prior to the filing of [Kinder Gas‟s] declaratory judgment action in
March 2010.

2. The district court erred in granting the [G]as [C]ompany
[D]efendants‟ exception[s] of prematurity as to the Reynolds
[F]amily‟s contract claims on finding that the surface lease was still in
effect[,] and Kinder [Gas] still had ongoing operations at the facility,[ ]
when the Supreme Court‟s Marin [v. Exxon Mobil Corp., 09-2368
(La. 10/19/10), 48 So.3d 234,] decision holds that the Civil Code does
not bar claims for damages while a lease is ongoing.

LAW AND DISCUSSION

Exceptions of Prescription-Tort Claims

When “evidence is introduced at the hearing on [a] peremptory
exception of prescription, the [trial] court‟s findings of fact are reviewed
under the manifest error-clearly wrong standard of review.” Carter v.
Haygood, 04-646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267. “If the
findings are reasonable in light of the record reviewed in its entirety, an
appellate court may not reverse even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence
differently.” Id.

McCain v. Cassidy, 11-124, p. 2 (La.App. 3 Cir. 6/8/11), 68 So.3d 631, 634. In the

instant matter, evidence was introduced at the hearing on the exceptions of

prescription. Therefore, we must decide if the trial court was manifestly erroneous

or clearly wrong in its determination that the Reynolds Family‟s tort claims had

prescribed.

The trial court‟s grant of the exceptions of prescription dismissed the

Reynolds Family‟s tort claims. “Delictual actions are subject to a liberative

prescription of one year.” La.Civ.Code art. 3492. Additionally, “[w]hen damage
4

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.” La.Civ.Code art. 3493. The issue presented in the instant matter

is: When did that prescriptive period commence? As set forth by our supreme

court, “[s]pecifically regarding property damage claims, knowledge sufficient to

start the running of prescription „is the acquisition of sufficient information, which,

if pursued, will lead to the true condition of things.‟” Marin, 48 So.3d at 246

(quoting Young v. Int’l Paper Co., 155 So. 231 (La.1934)).

Having considered the evidence adduced in this matter, and the relevant

jurisprudence, the trial court provided the following as the basis for its decision

(footnote omitted):

A review of the evidence in this matter makes clear that
[Defendants/Plaintiffs in Reconvention] had the requisite
knowledge of possible contamination on or before January 14,
2008, at the very latest.

Applying the holdings of Marin v. Exxon Mobil Corp.,
[09-2368 (La. 10/19/10), 48 So.3d 234,] and Hogg v. Chevron
USA, Inc., [09-2632 (La. 7/6/10), 45 So.3d 991,] to this matter, the
[Defendants/Plaintiffs in Reconvention] were required to file their
tort action within one year of said date. Because they did not, and
because the [c]ourt finds that the doctrine of contra non valentem
does not apply in this matter, the [c]ourt is required to sustain the
exceptions of prescription relative to the tort claims asserted
herein.

Accordingly, the tort claims asserted herein by
[Defendants/Plaintiffs in Reconvention] must be dismissed, as
prescribed.

The date of January 14, 2008, relied upon by the trial court as the

commencement of the prescriptive period, is the date a real estate appraiser,

Leonard Pauley, who was retained by the Reynolds Family, extended an offer to

Kinder Gas for its purchase of the property subject to the lease. This

5

correspondence, sent in the course of years of ongoing negotiations for the

purchase of the property, reads, in pertinent part, as follows:

I have been advised that some environmental problems may be
centered on the site. The problem[,] if any[,] has been created by
your company and/or your predecessors. Due to the potential
liability for the family and the apparent lack of consideration to the
family regarding the appropriate value/lease relationship until now
when this lease is almost up, we have decided to offer two options
to you. They are as follows:

The family owns approximately 26 acres in all. The only
consideration the family will give at this juncture is a total sale or a
lease of the entire track.

1. Sell the property. The selling price will be based on
$44,000.00 per acre, or $44,000.00 x 26 acres =
$1,144,000.00.

2. Lease the property. The lease would be based on 1% per
month of $44,000.00 per acre x 26 acres = $11,440.00 per
month x 12 = $137, 280.00 per year. This would be a Triple
Net Lease. The lease would contain a CPI clause adjusting
the rental amount every 5 years with the lease never
reducing below the primary term payments. The lease will
be paid monthly. The value would be readjusted based on
the Market Value Estimate every 10 years, or the primary
term payments, which ever [sic] is higher.

We intend to either resolve this matter with you, or we are going to have
Dr. John Bruza‟s office with the USACE to conduct a complete
investigation to insure that my clients are not faced with any unknown
environmental problems. They will assist us at no cost to my clients.

Undisputedly, the Reynolds Family has been aware of surface oil stains on

their property since 2003. They admit in brief to this court that Mary J. Kaufmann

had personally seen “a few surface oil stains in one isolated portion of the

property,” which observation lead to “the spector of contamination as a bargaining

ploy in unsuccessful property sale negotiations.” However, they argue that they

“had no knowledge that there may be something other than the insignificant

surface oil stains until Kinder [Gas] filed the underlying declaratory judgment

action in this case in 2010[.]” The Reynolds Family argues that “[a] review of the

6

full string of sporadic correspondence reveals the context of that letter to be part of

an exchange of negotiating positions by the lessors and lessees regarding the value

of their property proposals, not a substantive discussion of actual knowledge of

actual contamination.” We agree that the substance of the January 14, 2008 letter

must be viewed against the backdrop of what had transpired prior thereto in order

to ascertain the extent of their knowledge, actual or constructive.

At the hearing on the exceptions of prescription, testimony and evidence was

introduced establishing a time-line of the negotiations between the parties and the

information relative to any contamination of the property that was discussed

throughout. What follows is a brief summary thereof:

1997

The president of Kinder Gas, Thomas Manning, met with Gerald B.

Reynolds and “discussed several things,” including the existence of a

Phase Two environmental study “that showed a few things that

[Kinder Gas] wanted to clean up” and that it was “in the process of

cleaning them up.” Subsequently, discussions began for a potential

purchase of the portion of the Reynolds Family property that Kinder

Gas‟s facility was located on.

2000

(1) Thomas Manning, on behalf of Kinder Gas, forwarded

correspondence expressing the desire of Kinder Gas to purchase six

acres of the property for $6,000. If so, “the remainder of the lease

would be cancelled and both parties freed of its obligations.” One

specific “term and condition[] of the proposed transaction would be”

for “[b]oth parties [to] release and hold each other harmless for any

7

damages occurring to their respective lands prior to the purchase

date.”

(2) The attorney for Kinder Gas stated in communication to Mr. Ed

Mouser, the attorney for the Reynolds Family, that he was

proposing “a very lucrative offer” to purchase the property. Therein

he explained that “[u]nder both the lease and environmental statutes

[the Reynolds Family] would owe a fortune in clean[-]up costs once

[Kinder Gas‟s] lease was terminated.” However, “[w]ith this

proposal, [the Reynolds Family] would be alleviated from the

liability associated with environmental clean[-]up.”

2003

(1) Kinder Gas, via correspondence with Mary J. Kaufmann,

referenced “one or two preliminary discussions in the past about [its]

purchasing approximately six acres of land ([their] plant site) out of

the fifteen acres covered by the lease.” It was proposed that, if the

purchase was accomplished, “both parties would then release the other

from the terms of the lease and the approximately nine acres not

purchased would revert back to” the Reynolds Family.

(2) Mary J. Kaufmann personally “observed rusted equipment and a

few small spots of soil that appeared to be oily adjacent to the side of

the road and the fence[,]” and she “speculated that there might be

spots of oily soil near the flare area which is located outside of the

fenced boundary.”

(3) Mary J. Kaufmann responded to the proposed purchase by Kinder

Gas stating that the Reynolds Family was unwilling to sell a six acre

portion of the property. Her counter proposal was for Kinder Gas to
8

purchase ten of the fifteen acres, to include the five-six acres of

property that were currently fenced in, and, in addition thereto, the

acreage south of the fenced acreage that “ENCOMPASS[ED] THE

ORIGINAL GAS FLARE AND/OR LOCATION OF THE

HYDROCARBON CONTAMINATION.” That correspondence

further conditioned the sale upon the Kinder Gas‟s “AGREEMENT

TO ASSUME RESPONSIBILITY FOR CLEAN-UP AS

MANDATED BY LA. D. E. Q. AND/OR FEDERAL E.P.A. RULES.”

2007

Kinder Gas extended an offer to purchase ten acres of the property

and proposed that two appraisals be done on the property which

“would not include any equipment or any damage of contamination[,]

but would be only the value of the land itself.”

2008

Leonard Pauley, Jr., having performed an appraisal of the property at

the request of the Reynolds Family, directed a proposal to Kinder Gas

for the sale or lease of the entire tract. For the entire twenty-six acre

tract, the selling price was $44,000.00 per acre, for a total of

$1,144,000.00. Alternatively, the lease price demanded was

$11,440.00 per month, or an annual lease price of $137,280.00.

Within his correspondence, Mr. Pauley stated that he had “been

advised that some environmental problems may be centered on the

site.” Mr. Pauley‟s correspondence concludes, stating: “We intend to

either resolve this matter with you, or we are going to have Dr. John

Bruza‟s office with the USACE to conduct a complete investigation to

9

insure that my clients are not faced with any unknown environmental

problems.”

2009

As the fifty-years of renewal of the 1960 surface lease was

approaching its end, Kinder Gas gave notice to the Reynolds Family

of its intent to extend the lease for a period of two years, during which

extension it would, among other things, “[c]lean up any

environmental condition required by the Louisiana Department of

Environmental Quality.” Alternatively, Kinder Gas indicated that it

would consider a purchase of the portion of the property it was

currently using.

In connection with the foregoing evidence, the parties argued in the trial

court, as they do on appeal, the application of the law of prescription relating

specifically to property contamination cases as set forth by our supreme court in

Marin, 48 So.3d 234, and Hogg, 45 So.3d 991. Relying on the January 14, 2008

correspondence quoted above, the trial court held that the knowledge was sufficient

to commence the prescriptive period under the dictates of Marin and Hogg.

However, quoting the language of Marin, as to “actual or constructive knowledge

of actual or appreciable damages,” the Reynolds Family maintains that “there is no

evidence that the Reynolds [F]amily had actual or constructive knowledge of actual

or appreciable damages prior to the filing of [Kinder Gas‟s] declaratory judgment

action in March 2010. To the contrary, it is their contention that “the only

contamination about which the record here shows that the Reynolds [F]amily had

actual or constructive knowledge is minor oil stains on the surface soil[.]” We

disagree.

10

The record is clear that dating as far back as the initial meeting between

Thomas Manning and Gerald B. Reynolds in 1997, there was some discussion of

contamination. According to the testimony of Mr. Manning, the Phase II

Environmental Site Assessment was discussed, at least to some degree. From that

time forward, contamination of the property was discussed on numerous occasions

during the course of negotiations for the sale of the property. Indeed, there were

repeated acknowledgments of contamination which was used by the Reynolds

Family in their effort to obtain a significantly higher price for the property from

Kinder Gas. These negotiations culminated with the January 14, 2008 letter relied

upon by the trial court as evidence of “the requisite knowledge of possible

contamination.” The knowledge of contamination, as repeatedly evidenced in the

correspondence, triggered a duty to investigate the potential damage to the property

and the legal requisite of filing suit within one year of acquiring that knowledge.

This conclusion is wholly supported by our supreme court‟s decisions in Marin and

Hogg.

Contra Non Valentem

In an effort to avoid the dismissal of its tort claims, the Reynolds Family

also argues that the doctrine of contra non valentem should have been applied,

resulting in the interruption or suspension of the prescriptive period. Specifically,

of the four categories of contra non valentem discussed by the court in Marin, they

contend that the following are relevant in this case: “where the debtor himself has

done some act effectually to prevent the creditor from availing himself of his cause

of action; or . . . where the cause of action is neither known nor reasonably

knowable by the plaintiff even though plaintiff's ignorance is not induced by the

defendant.” The argument relative to contra non valentem raised by the Reynolds

Family is that the Gas Company Defendants “withheld information” as to the
11

severity of the contamination and that they assured the Reynolds Family that it

“was being cleaned up.” We disagree with the Reynolds Family‟s contention that

the doctrine of contra non valentem should apply in this case.

The record is void of any evidence that the Reynolds Family was prevented

“from availing [itself] of [its] cause of action.” In fact, there was nothing

preventing them from asserting a cause of action in tort as early as January 1998,

or earlier. Instead, they elected to continue to negotiate for the sale of the property

and use the contamination as a bargaining tool in the negotiations. Additionally,

for the extensive reasons set forth above, the record establishes that the Reynolds

Family had knowledge of the existence of contamination; thus, “the cause of

action[,]” was “known” or “reasonably knowable” by January 1998, at the very

latest.

Based upon the foregoing, we find that a reasonable factual basis exists in

the record to support the trial court‟s finding. Thus, we find that the trial court was

not manifestly erroneous or clearly wrong in its determination. We, therefore,

affirm the trial court‟s grant of the exceptions of prescription on behalf of the Gas

Company Defendants dismissing the tort claims asserted by the Reynolds Family.

Exceptions of Prematurity – Contractual Claims

Louisiana Code of Civil Procedure [A]rticle 926(A)(1)
provides for the dilatory exception raising the objection of
prematurity. Such an objection is intended to retard the progress of
the action rather than defeat it. La.Code Civ. P. arts. 923 and 926.
A suit is premature if it is brought before the right to enforce the
claim sued on has accrued. La.Code Civ. P. art. 423. Prematurity
is determined by the facts existing at the time suit is filed.
Houghton v. Our Lady of the Lake Hosp. Inc., 03-0135, p. 5
(La.App. 1 Cir. 7/16/03), 859 So.2d 103, 106. Evidence may be
introduced to support or controvert the exception, when the
grounds do not appear from the petition. La.Code Civ. P. art. 930.
The objection of prematurity raises the issue of whether the
juridical cause of action has yet come into existence because some
prerequisite condition has not been fulfilled. Bridges v. Smith,
01-2166, p. 4 (La.App. 1 Cir. 9/27/02), 832 So.2d 307, 310, writ
12

denied, 02-2951 (La.2/14/03), 836 So.2d 121. The objection
contemplates that the action was brought prior to some procedure
or assigned time, and is usually utilized in cases where the
applicable law or contract has provided a procedure for one
aggrieved of a decision to seek relief before resorting to judicial
action. Plaisance v. Davis, 03-0767, p. 6 (La.App. 1 Cir. 11/7/03),
868 So.2d 711, 716, writ denied, 03-3362 (La.2/13/04), 867 So.2d
699.

Harris v. Metro. Life Ins. Co., 09-34, pp. 10-11 (La.App. 1 Cir. 2/5/10), 35 So.3d

266, 274. “Prematurity is determined by the facts existing at the time the lawsuit is

filed.” White v. St. Elizabeth B.C. Bd. of Dirs., 43,329, p. 3 (La.App. 2 Cir.

6/4/08), 986 So.2d 202, 204-05, writ denied, 08-1440 (La. 10/10/08), 993 So.2d

1284 (citing Plaisance, 868 So.2d 711). Finally, “[w]e review a trial court‟s denial

of an exception of prematurity under the manifest error standard.” Granger v.

Granger, 11-77, p. 4 (La.App. 3 Cir. 6/15/11), 69 So.3d 666, 669, writ denied,

11-1882 (La. 9/16/11), 69 So.3d 1152 (citing Pinegar v. Harris, 08-1112 (La.App.

1 Cir. 6/12/09), 20 So.3d 1081).

Following the hearing on the exceptions of prematurity, the trial court held

as follows:

The Reconventional Demand, filed March 25, 2011, also
asserts contract claims for damages arising under the subject lease.
At that time, the subject lease was in effect and the lessee, Kinder
Gas, Inc., had [ongoing] operations upon the subject property.

A suit is premature if it is brought before the right to enforce
the claim sued upon has accrued. La.[Code Civ.]P. art. 423.
Prematurity is determined by the facts existing at the time a suit is
filed. Sevier v. U.S. Fidelity & Guar. Co., 497 So.2d 1380; Brister
v. Southwest Louisiana Hosp. Ass’n, 624 So.2d 970 (La.App. 3d
Cir. 1993).

A review of the Reconventional Demand, and particularly its
prayer, reveals that the claims asserted by [Plaintiffs in
Reconvention] are contract claims involving the corporations‟
purported obligation to restore the land on which the operations are
[ongoing]. Therefore, applying the holding of Dore Energy
Company v. Carter-Langham, Inc., et al[.], 901 So.2d 1238
(La.App. 3d Cir. 2005) to this matter, the [R]econventional

13

[D]emand as it relates to contract claims must be dismissed,
without prejudice, as premature.

With respect to their contractual claims, the Reynolds Family asserts that

the trial court‟s reliance on Dore Energy Company, 901 So.2d 1238, is misplaced

since, “[i]n Dore, the breach of lease claims were brought solely under the

Mineral Code with regard to claims brought on a mineral lease, and specifically

related to claims for restoration of the land.” Whereas, “[h]ere, the Reynolds

[F]amily‟s claims arise under a surface lease and are subject to the broader

obligations in the Civil Code discussed by the [supreme court in] Marin[.]” The

Reynolds Family concludes, therefore, that Marin does not preclude the present

claims brought pursuant to the terms on an ongoing surface lease based on

prematurity.

Undisputedly, in the instant matter, at the time the reconventional demand

was filed, the lease was in effect. Our supreme court, in Corbello v. Iowa

Production, 02-826 (La. 2/25/03), 850 So.2d 686, held that the duty to restore

leased property does not arise until the expiration of the lease. This court reached

the same conclusion in Dore, recognizing that certain claims may be asserted

during the existence of a lease; however, following Corbello, we held that claims

involving obligations to restore the land on which operations are ongoing are

premature. Marin does not change this result.

For the foregoing reasons, we cannot say that the trial court was manifestly

erroneous or clearly wrong. We, therefore, affirm the trial court‟s grant of the

exceptions of prematurity and the dismissal, without prejudice, of the contractual

claims asserted by the Reynolds Family.

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DECREE

For the reasons assigned, the judgment of the trial court is affirmed. Costs

of this appeal are assessed to Gerald B. Reynolds, Robin Reynolds Lipari, Nancy

Reynolds Landry, and Mary J. Kaufmann.

AFFIRMED.

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