Sasol North America, Inc. v. Betty Bolton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 12-724

SASOL NORTH AMERICA, INC.

VERSUS

BETTY BOLTON, EDWARD BOLTON AND GLENN BOLTON

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2011-1988
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

AFFIRMED.

Patrick Gallaugher, Jr.
Robert E. Landry
Scofield, Gerard, Pohorelsky, Gallaugher
& Landry
P.O. Drawer 3028
Lake Charles, Louisiana 70602
(337)433-9436
COUNSEL FOR DEFENDANT/APPELLANT:
Sasol North America, Inc.

Russell Stutes, Jr.
P. Jody Lavergne
Stutes & Lavergne, LLC
600 Broad Street
Lake Charles, Louisiana 70601
(337)433-0022
COUNSEL FOR PLAINTIFFS/APPELLEES:
Betty Ann Bolton
Edward Bolton
Glenn Bolton

PICKETT, Judge.

Pipeline owner appeals the trial court’s grant of summary judgment in favor

of the defendants, arguing the judgment was improperly granted because the

defendants offered and it accepted an oral offer to renew the pipeline right of way

at issue for thirty years. For the following reasons, we affirm the judgment.

FACTS

In 1979, Betty Ann Bolton, M. B. Bolton, Jr., and Continental Oil Company

entered into a right of way agreement for the construction of a pipeline across a

portion of the Boltons’ property in Calcasieu Parish. The right of way agreement

expired pursuant to its terms in February 2009. Thereafter, Mrs. Bolton1 and Sasol

North America, Inc. (Sasol), which had acquired Continental Oil Company’s rights

under the right of way agreement, began negotiating an extension of the servitude.

They did not finalize an agreement, however, and Sasol filed suit in 2011. Sasol

asserted that Mrs. Bolton had made an oral offer to extend the right of way an

additional thirty years for $50,000, which it accepted, but she refused to

consummate their agreement. It sought a judgment declaring an oral contract

existed between it and Mrs. Bolton and ordering the Boltons to fulfill the terms of

the contract. The Boltons answered Sasol’s petition, denying they offered to renew

the right of way and averring requests by Sasol for a renewal had been rejected.

Pointing to La.Civ.Code art. 1839, the Boltons filed a Motion for Summary

Judgment, arguing Sasol failed to prove it has a valid pipeline right of way. Article

1839 requires that transfers of immovable property be in writing. It also

acknowledges the validity of oral transfers if possession of the property is actually

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Mr. Bolton had died, and pursuant to a Judgment of Possession issued in 1994 in his
succession, Mrs. Bolton is the owner of an undivided fifty percent interest in the property on
which the pipeline is situated and usufructuary of the remaining fifty percent interest in the
property; the Boltons’ two sons are naked owners of that remaining fifty percent interest.

transferred and the transfer is acknowledged under oath by the transferor. The

Boltons supported the motion with excerpts of Mrs. Bolton’s deposition testimony

and an affidavit in which she denied that she agreed to renew the right of way for

$50,000.

Sasol opposed the motion, arguing that Mrs. Bolton orally offered to renew

the right of way for thirty years in exchange for $50,000, if it built a fence

enclosing the pipeline and repaired damages on the right of way caused by third

parties. Sasol asserted that it accepted Mrs. Bolton’s terms and that their

agreement satisfied the requirements of a lease as provided in La.Civ.Code art.

2668.

After a hearing, the trial court granted the judgment. Sasol filed a motion

for new trial which was denied; it appealed.

ISSUE PRESENTED FOR REVIEW

The pleadings and the parties’ arguments on the merits of the trial court’s

judgment present one issue for our review: Did the trial court err in granting

summary judgment in favor of the Boltons?

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo, using the same

criteria applied by trial courts to determine whether summary judgment is

appropriate. La. Safety Ass’n of Timbermen-Self Insurers Fund v. La. Ins. Guar.

Ass’n, 09-23 (La. 6/26/09), 17 So.3d 350. A motion for summary judgment will

be granted “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 mover is entitled to judgment as a matter

of law.” La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be

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construed “to secure the just, speedy, and inexpensive determination of every

action.” La.Code Civ.P. art. 966(A)(2).

The initial burden of proof is on the movant to show that no genuine issue of

material fact exists. La.Code Civ.P. art. 966(C)(2). However, if the movant will

not bear the burden of proof at trial, he need not “negate all essential elements of

the adverse party’s claim,” but he must show “there is an absence of factual

support for one or more elements essential [to the] claim.” Id. Once the movant

has met his initial burden of proof, the burden shifts to the adverse party “to

produce factual support sufficient to establish that he will be able to satisfy his

evidentiary burden at trial.” Id.

DISCUSSION

The Boltons argue in their motion for summary judgment that Sasol is

seeking to enforce a predial servitude as provided in La.Civ.Code art. 708 and,

therefore, must satisfy the requirements of La.Civ.Code art. 1839. Article 1839

requires that a transfer of immovable property be in writing. The Boltons contend,

therefore, that Sasol’s claim of an enforceable oral contract between it and

Mrs. Bolton is without merit and that they are entitled to summary judgment

dismissing Sasol’s suit.

There are two types of servitudes. Predial servitudes exist in favor of a

dominant estate on a servient estate. La.Civ.Code art. 646. There is no evidence

that the right of way at issue is a predial servitude because Sasol has not been

shown to be the owner of a dominant estate. The facts in the record indicate the

right of way is a personal servitude rather than a predial servitude. For purposes of

this case, however, the differences between personal and predial servitudes have no

bearing on our consideration of the Boltons’ motion.

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A right of way is a personal servitude of right of use that “confers in favor of

a person a specified use of an estate less than full enjoyment”; it may be

established in favor of a legal entity. La.Civ.Code arts. 639, 641. Rights of use are

incorporeal immovables. La.Civ.Code art. 470. Accordingly, they are subject to

the writing requirement of La.Civ.Code art. 1839. See Richard v. Hall, 03-1488

(La. 4/23/04), 874 So.2d 131. If no writing exists, an oral transfer of immovable

property can only be proved “when the property has been actually delivered and

the transferor recognizes the transfer when interrogated on oath.” La.Civ.Code art.

1839.

Sasol opposes the Boltons’ motion, arguing that Mrs. Bolton offered to

renew the right of way for a period of thirty years in exchange for the payment of

$50,000 and that it accepted her terms. Sasol contends that while the Agreement

could be a personal servitude, it also satisfies the requirements of Article 2668 and

is not subject to the requirements of Article 1839.

Article 2668 provides that a lease is an agreement between a lessor and a

lessee in which the lessee is given “the use and enjoyment of a thing for a term in

exchange for a rent.” Article 2668 further provides, however, “The consent of the

parties as to the thing and the rent is essential but not necessarily sufficient for a

contract of lease.” Pertinent to this latter provision, Revision Comment (d) to

Article 2668 (emphasis added) explains:

Without an agreement as to the thing and the rent, there cannot
be a contract of lease. On the other hand, the existence of such an
agreement does not necessarily mean that a contract of lease has come
into existence if the parties did not so intend. For example, if, despite
agreement on the thing and the rent, it is understood that the parties
will not be bound until they agree on other terms of the contract, then
there is no lease until these terms are agreed upon. Similarly, even if
the parties intended to be bound upon their agreement as to the
thing and the “rent,” the resulting contract may or may not be
one of lease, depending again on the intent of the parties. For
example, if the right intended to be conveyed has the attributes of
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a real right such as a personal servitude or a limited personal
servitude of use, then the contract is not a lease, even though the
parties used terms like “rent” or “lease.” Cf. C.C. Art. 730 (Rev.
1977).

Sasol attached to its Petition a copy of the Right of Way Agreement (the

Agreement) it prepared and submitted to Mrs. Bolton for her to sign. The

Agreement states that Mrs. Bolton grants Sasol “an easement and servitude” and

the terms “right of way” and “Right of Way Agreement” are used throughout it.

The Agreement also provides that if the pipeline ceases operation for a period of

twenty-four months or more, all rights “terminate and the land covered by this

servitude shall revert to Owner, its successors and/or assigns.” Notably, the

Agreement does not use either of the terms “rent” or “lease,” and it appears as

though Sasol only began using these terms in response to the Boltons’ Motion for

Summary Judgment.

Notwithstanding the fact that a right of way may be the subject of a lease as

Sasol argues, the quoted terminology shows Sasol considered the right of way it

sought to renew with Mrs. Bolton to be a “servitude” as contemplated by Revision

Comment (b) to Article 2688. For these reasons, we find no error with the trial

court’s conclusions that La.Civ.Code art. 1839 governs the issues presented by

Sasol’s Petition.

Sasol has not presented evidence that a genuine issue of material fact exists

which prohibits summary judgment in favor of the Boltons. Specifically, Sasol has

not shown that the Agreement was reduced to writing, and it has not controverted

Mrs. Bolton’s deposition testimony and affidavit that she did not offer and/or agree

to renew the right of way for thirty years for the sum of $50,000. Accordingly, we

find no error with the trial court’s grant of summary judgment.

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DISPOSITION

The judgment of the trial court is affirmed. All costs are assessed to Sasol

North America, Inc.

AFFIRMED.

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