Carlos Boone, Et Ux. v. Conoco Phillips Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1196

CARLOS BOONE, ET UX.

VERSUS

CONOCO PHILLIPS COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 92292
HONORABLE JOHN DAMIAN TRAHAN, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John E. Conery, Judges.

AFFIRMED.

Warren A. Perrin
Perrin, Landry, deLaunay, Dartez & Ouellet
251 La Rue France
Lafayette, LA 70508
Telephone: (337) 237-8500
COUNSEL FOR:
Plaintiffs/Appellants - Carlos Boone and Lori Theriot Boone

Morgan J. Wells, Jr.
Larzelere, Picou, Wells, Simpson, Lonero, LLC
3850 N. Causeway Boulevard – Suite 1100
Metairie, LA 70002
Telephone: (504) 834-6500
COUNSEL FOR:
Defendant/Appellee - EmerQuest Oil & Gas, LLC

Michael Gregory Stag
Smith Stag, LLC
365 Canal Street – Suite 2850
New Orleans, LA 70130
Telephone: (504) 593-9600
COUNSEL FOR:
Plaintiffs/Appellants - Carlos Boone and Lori Theriot Boone

Rebecca H. Dietz
King, Krebs & Jurgens, PLLC
201 St. Charles Avenue – 45th Floor
New Orleans, LA 70170
Telephone: (504) 582-3800
COUNSEL FOR:
Defendant/Appellee - Conoco Phillips Company

THIBODEAUX, Chief Judge.

The plaintiffs, Carlos and Lori Boone, appeal from a motion for

summary judgment and exception of prescription decided adversely to them and

filed by EnerQuest Oil & Gas, LLC, lessee of former owners of the plaintiffs‟

property. Finding that the plaintiffs failed to carry their burden of proving a valid

right of action in tort or contract, we affirm the judgment dismissing EnerQuest

from the plaintiffs‟ suit.

I.

ISSUES

We must decide:

(1) whether the trial court erred in granting summary judgment to
EnerQuest; and

(2) whether the trial court manifestly erred in granting EnerQuest‟s
exception of prescription.

II.

FACTS AND PROCEDURAL HISTORY

In August of 2005 the Boones purchased 18.66 acres of land

encumbered by mineral reservations and oil and gas leases; the sale price was

$120,000.00. The sellers, Primeaux Properties, Inc., had purchased the

encumbered property in 2003 from Aaron Lagneaux and Eric Lagneaux for

$105,000.00. Oil and gas operations on the property allegedly date back to 1972.

The Lagneaux acquisition was via generational inheritances dating back to 1971,

and it apparently included the minerals because Lagneaux specifically reserved “all

of the minerals and mineral rights” to the property in its act of sale to Primeaux in

2003.

The defendant oil and gas operator, EnerQuest, had purchased the

wells and operating rights from Phillips Petroleum Company in 2000. EnerQuest

sold all of its operating rights and interest in the property, along with all of its

leases, facilities, wells, and equipment to Petro “E” in 2004. The sale and

assignment to Petro “E” included EnerQuest‟s use of, and obligation to clean and

restore, the surface of the property.

In May of 2010, the Boones, asserting contamination and property

damage, filed suit against six oil and gas operators, including CONOCOPHILLIPS

Company as successor to Phillips, EnerQuest, Petro “E,” and three other operators.

The Boones asserted that they had within the last year found abandoned debris and

equipment and asserted a failure to properly clean and restore the property. In a

first amended petition in July of 2012, the Boones identified three of five wells on

the property that had been operated by EnerQuest prior to its sale to Petro “E.”

EnerQuest filed a motion for summary judgment asserting that the

Boones were precluded by law from asserting a tort or contract claim for property

damage that pre-dated their 2005 acquisition of the property without a specific

assignment of that right from the former owner. Among its exhibits, EnerQuest

attached an “Operator History by Well” for each of its three former wells, showing

that EnerQuest did not conduct any operations on the property after April 30, 2004,

when it sold its rights and interest to Petro “E,” effective May 1, 2004. EnerQuest

also attached the act of sale from Primeaux to the Boones dated August 26, 2005,

showing that no assignment of pre-acquisition damage rights were conveyed to the

Boones by the previous owner, Primeaux.

2

The Boones‟ opposition to the motion for summary judgment

included newly-obtained assignments of rights from the previous owners,

Primeaux and Lagneaux. EnerQuest asserted that the assignments were invalid

and that any tort claims they sought to transfer were prescribed since Lagneaux

sold the property in 2003 and Primeaux sold the property in 2005.

The trial court allowed the Boones permission to file a second

supplemental and amending petition asserting their right as assignees to the rights

of the previous owners; claims for fraud and conspiracy, as well as the solidary

liability of all defendants. The trial court then granted EnerQuest‟s motion for

summary judgment and exception of prescription.

III.

STANDARD OF REVIEW

The grant or denial of a motion for summary judgment is reviewed de

novo, “using the same criteria that govern the trial court‟s determination of

whether summary judgment is appropriate; i.e. whether there is any genuine issue

of material fact, and whether the movant is entitled to judgment as a matter of

law.” Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83

(citations omitted); La.Code Civ.P. art. 966. “When prescription is raised by

peremptory exception, with evidence being introduced at the hearing on the

exception, the trial court‟s findings of fact on the issue of prescription are subject

to the manifest error-clearly wrong standard of review.” Specialized Loan

Servicing LLC v. January, 12-2668, pp. 3-4 (La. 6/28/13), 119 So.3d 582, 584

(citations omitted).

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IV.

LAW AND DISCUSSION

At issue in this matter is the correctness of the trial court‟s judgment

granting the motion for summary judgment and the exception of prescription filed

by the defendant, EnerQuest. The bases of EnerQuest‟s motion and exception are

that the Boones (1) have no valid contract claims against EnerQuest because the

subsequent purchaser doctrine invalidates their claims for pre-acquisition property

damage; the plaintiffs are not a party to any lease, assignment, or other contract

with EnerQuest; and the plaintiffs did not obtain an assignment of any contractual

rights from the previous owners. EnerQuest further asserts that the Boones (2)

have no claims in tort because any tort claims acquired from the previous owners

have prescribed; the claims asserted in the plaintiffs‟ second supplemental petition

do not relate back to the original petition; and EnerQuest is not solidarily liable

with Petro E for any actionable tort claims.

The Boones argue that (1) their contract claims are valid because the

subsequent purchaser doctrine does not apply; the relevant contracts give them a

right of action to sue for damages and restoration of the property; and the contract

claims have not prescribed because EnerQuest operated under mineral leases until

2004, and the surface lease was in effect until 2012. As to the tort claims, the

Boones argue that (2) they timely asserted tort claims against solidary and/or joint

tortfeasors; they obtained valid assignments of the tort claims at the time of the

damage; and their second supplemental petition relates back to the filing of their

original petition for damages.

We begin with a review of the subsequent purchaser rule or doctrine.

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Subsequent Purchaser Doctrine

The subsequent purchaser rule is a jurisprudential
rule which holds that an owner of property has no right or
actual interest in recovering from a third party for
damage which was inflicted on the property before his
purchase, in the absence of an assignment or subrogation
of the rights belonging to the owner of the property when
the damage was inflicted.

Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, p. 8 (La. 10/25/11),

79 So.3d 246, 256-57.

In articulating the application and source of the subsequent purchaser

doctrine, the Louisiana Supreme Court in Eagle Pipe and Supply, Inc. provided a

thorough analysis of the pertinent principles of Louisiana property law and

Louisiana‟s law of obligations in the Louisiana Civil Code. Relevant to our

inquiries here, a real right is not defined by the Civil Code but has long been held

to be a proprietary interest and a species of ownership, which “defines the relation

of man to things and may, therefore, be declared against the world.” Eagle Pipe

and Supply, Inc., 79 So.3d at 259 (quoting Harwood Oil & Mining Co., 240 La. at

652, 124 So.2d at 767 (1958)). A real right and a real obligation both attach to a

thing. Id. at 261; La.Civ.Code art. 1764, Revision Comments--1984, (b).1

The legal right that a person has against another person to
demand the performance of an obligation is called a
personal right. Distinct from a real right, which can be
asserted against the world, a personal right is effective
only between the parties. La. C.C. art. 1758. This court
has declared that “a personal right ... defines man‟s
relationship to man and refers merely to an obligation
one owes to another which may be declared only against
1
A real obligation is transferred to the universal or particular successor who acquires the
movable or immovable thing to which the obligation is attached, without a special provision to
that effect.

But a particular successor is not personally bound, unless he assumes the personal
obligations of his transferor with respect to the thing, and he may liberate himself of the real
obligation by abandoning the thing. La.Civ.Code art. 1764.

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the obligor.” Harwood Oil & Mining Co., 240 La. at
651, 124 So.2d at 767 [citing Reagan [v. Murphy, 235
La. [529], 541, 105 So.2d [210], 214 [(1958))].

....

This court has held “[u]nder the civil law concept, a lease
[a contract about property] does not convey any real right
or title to the property leased, but only a personal right.”
Richard v. Hall, 2003-1488, p. 17-18 (La.4/23/04), 874
So.2d 131, 145. “That a lease is not a real right under the
civil law is well settled.” Reagan, [105 So.2d at] 214.

....

Real rights, and real obligations pass to a
subsequent acquirer of the thing to which it is attached
without the need of a stipulation to that effect. La.
C[iv.Code] art. 1764, Revision Comments--1984, (c). A
personal right, by contrast, cannot be asserted by another
in the absence of an assignment or subrogation. La. C.C.
art. 1764, Revision Comments--1984, (d) and (f).

Eagle Pipe and Supply, Inc., 79 So.3d at 261-62 (footnotes omitted).

Based upon the foregoing, real rights and obligations attach to the

thing, while personal rights and obligations attach to the person. Further, and more

specifically, the real rights and obligations of ownership attach to a piece of

property when it is sold without the need of a stipulation, but the personal rights

and obligations arising from a lease between the former owner and the lessee for

events occurring before the sale do not pass to the new owner unless they are

specifically assigned.

As illustrated by Eagle Pipe and Supply, Inc. through its analysis of

Clark v. J.L. Warner Co. et al., 6 La.Ann. 408 (1851) and subsequent

jurisprudence, the former owner retains the right to recover the damages caused by

the former owner‟s lessee during the former owner‟s ownership of the property.

“This personal right of the property owner arises because his real rights in the

6

ownership of the property have been disturbed--his use, enjoyment or disposal of

the property.” Eagle Pipe and Supply, Inc., 79 So.3d at 264. The court further

stated:

Clark explicitly states [that] the personal right of the
property owner to demand damages for the injury to the
property must be assigned or subrogated if the personal
right is to survive a change of ownership in the property:

[The former owner‟s] bill of sale to the
plaintiff is in the usual form for the
conveyance of real estate and its
appurtenances. It does not transfer her claim
for damages, expressly, nor is there anything
in it which indicates a transfer by
implication. The rights and appurtenances
mentioned in the bill of sale have always
been considered real rights. It does not
appear, therefore, either by law or contract,
that the plaintiff has any claim for damages
previous to the 16th of May, 1848, when he
purchased the property.

Eagle Pipe and Supply, Inc., 79 So.3d at 264-65 (quoting Clark, 6 La.Ann. at 409).

Here, the act of sale from Primeaux to the Boones on August 26,

2005, provides that, for the consideration of $120,000.00, Primeaux “transfer[s]

and deliver[s] with full guarantee of title and free from all encumbrances and with

subrogation to all of its rights and actions of warranty against previous owners” the

18.66-acre tract of land in the legal description. Likewise, the previous act of sale

from Lagneaux to Primeaux in 2003 contained almost identical language. Under

Clark and Eagle Pipe, this language is general language and in the usual form for a

conveyance of real estate. It does not assign the seller‟s personal right to sue the

lessee for damage already done to the land.

The 2003 Lagneaux act of sale states that Lagneaux “reserves all of

the minerals and mineral rights to the subject property” and that the sale to

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Primeaux is subject to mineral reservations and leases. The 2005 Primeaux act of

sale to the Boones references the prior sale from Lagneaux to Primeaux in 2003

and provides the recordation information. Both acts of sale state that the sale is

“subject to the restrictive covenants, easements, mineral reservations, mineral

leases and obligations of ownership” affecting the property. Thus, both documents

indicate that mineral rights and leases have been reserved and encumber the land,

and neither document transfers to the new owner the former owner‟s right to sue

for damages.

The subsequent purchaser doctrine is not limited to apparent damages;

it applies to prohibit suit against the lessee whether the pre-acquisition damage is

apparent or not. Eagle Pipe and Supply, Inc., 79 So.3d 246. If damage to the

property is apparent, the purchaser is presumed to know its condition and to have

negotiated a sale price taking the defects into consideration. Id. If the damage is

not apparent, the purchaser has a cause of action in redhibition against the seller for

rescission of the sale or reduction of the sale price, but he does not have a right of

action against the seller‟s lessee.

The subsequent purchaser doctrine is not limited to tort claims, as

shown in Clark, 6 La.Ann. 408, and it is not limited to cases involving expired

leases, as suggested by the Boones. In its comprehensive analysis of the doctrine,

the court in Eagle Pipe and Supply, Inc., 79 So.3d at 266 (emphasis added)

(footnote omitted), discussed further jurisprudence that included the relevant

issues, as follows:

In Matthews v. Alsworth, 45 La.Ann. 465, 12 So.
518 (1893), property was sold subject to an existing
lease. The new owner filed suit against the lessee for a
dissolution of the lease based on the lessee‟s violation of
his obligations, for compensation for the diminution in

8

the value of the property for the lessee‟s damage to the
property, and for the rent for the year which accrued in
the year before the sale. This court found the new owner
had no right of action to sue for damages from the lessee
for damage to the property before the sale, either under
the lease contract or in tort. Instead, the right to sue for
damage to the property inflicted before the sale was a
personal right of the former owner/lessor which arose
from the lessee‟s breach of the contractual obligations of
the lease during the time the lessee owed those
obligations to the former owner/lessor.

The former owner had not assigned or subrogated
this personal right to the new owner in the act of sale.
The deed contained the following language:

Said lease and all the aforesaid conveyors‟
rights in, to, or under the same are
transferred hereby, and simultaneously
herewith, to the conveyee herein. This
conveyance is made with complete transfer
and subrogation of all rights and all actions
of warranty or otherwise against all former
claimants, proprietors, tenants, or warrantors
of the property herein conveyed.

By this language, the court held the new owner/lessor
was subrogated to the lease provisions, but only from the
date of his purchase of the property. “The lessee is liable
on the covenants of his lease, and to these,
unquestionably, plaintiff [the new property owner] is
subrogated from the date of his purchase. By the use of
the words „right in, to, or under the lease,‟ the plaintiff
did not become an assignee of damages of date prior to
the sale.” Matthews, 45 La.Ann. at 469, 12 So. at 519.

The personal right of the owner to sue for damages
was not explicitly assigned in the act of sale, and
additionally was not an accessory right which passed
with the title without description of, or reference to, the
claim. In the act of sale, the property was specifically
described, and there was no mention of a claim for
damages. The court held it could not “presume that there
were additional rights in the nature of damages, the deed
being silent as to damages.” Matthews, 45 La.Ann. at
469, 12 So. at 519. Matthews reinforces the proposition
that personal rights of the former owner do not pass with
the property in an act of sale unless specifically assigned
or subrogated to the new owner.

9

Thus, even when property is conveyed during the term of a lease, the

purchaser cannot recover from the lessee for damages accruing prior to the sale.

See also Prados v. South Central Bell Tel. Co., 329 So.2d 744 (La.1975). In

Matthews, 12 So. 518, because the deed of sale also conveyed the lease and the

seller‟s rights in the lease to the new owners, they would have a right of action

against the lessee, but only for damages arising after the date of sale.

In the present case, the acts of sale fail to transfer any pre-acquisition

rights to the new owners for damages caused by the lessee prior to the act of sale

and specifically withhold the minerals and all leases from the act of sale.

Lagneaux reserved the rights for himself in 2003, and in 2005 Primeaux, who

never obtained them from Lagneaux, referenced the mineral and lease reservations

in its sale to the Boones and pointed the Boones to the recorded prior act of sale

from Lagneaux. Accordingly, the Boones knew that the land was encumbered by

reserved mineral rights and leases. Under the subsequent purchaser doctrine, they

do not have a right of action to sue the lessee for damages occurring prior to their

acquisition of the property.

The Assignments

In September of 2012, the Boones obtained assignments from former

owners, Lagneaux and Primeaux, in attempts to obtain the right to sue EnerQuest

for damages that the act of sale did not convey. We find that the assignments also

fail to provide the plaintiffs with a right of action for pre-acquisition damages

against EnerQuest. The Lagneaux assignment attempts to assign all personal and

tort causes of action, including inherited rights, to the Boones. Like the act of sale,

however, the assignment specifically excludes mineral and contractual rights and

10

leases. The Lagneaux assignment states in the fourteenth paragraph (emphasis

added): “Nothing herein shall affect and this Agreement specifically excludes the

mineral rights and/or contractual rights, including, but not limited to, leases, of the

Parties.” Lagneaux sold the property to Primeaux in March of 2003. If Lagneaux

had taken a lower price from Primeaux because of damage caused to the land by

EnerQuest, Lagneaux would have known this at least by the time of sale. Thus,

under La.Civ.Code art. 2315, and under La.Civ.Code art. 3493 specifically

governing damage to immovable property, Lagneaux had one year, or until March

of 2004 to bring suit against EnerQuest. Therefore, in 2012, Lagneaux had no

right of action in tort to assign to the Boones because Lagneaux‟s tort claims had

prescribed eight years earlier.

With regard to the assignment by Primeaux, also in September 2012,

Primeaux could not assign contractual rights under the leases because Primeaux

did not acquire contractual rights upon its purchase from Lagneaux in 2003. If

Primeaux thought it had to take a lower sale price from Boone in August of 2005

because of damage by a lessee, it would have acquired that knowledge at least by

the time of sale and would have had a year, or until August of 2006, to bring its

tort suit. However, Primeaux did not take a lower price; since it paid only

$105,000.00 for the property in 2003 and sold it to the Boones for $120,000.00 in

2005, there had been no diminution of value. In any event, when Primeaux

executed the assignment in 2012, it had no right of action to assign to the Boones.

Accordingly, the Boones did not obtain any tort or contract rights from the

previous owners via the assignments to sue for damages caused prior to the act of

sale in 2005.

11

The Boones signed affidavits stating that Lagneaux and Primeaux

intended to assign contractual rights to the Boones in the assignments where they

referenced all rights and causes of action. That is not what these assignments, the

acts of sale, or any other leases or documents in the record show. “When the

words of a contract are clear and explicit and lead to no absurd consequences, no

further interpretation may be made in search of the parties‟ intent.” La.Civ.Code

art. 2046. When EnerQuest asserted in its motion for summary judgment that the

Boones would not be able to prevail on its claims for damages against EnerQuest,

the burden shifted to the Boones to show that they could prevail at trial:

The burden of proof remains with the movant.
However, if the movant will not bear the burden of proof
at trial on the matter that is before the court on the
motion for summary judgment, the movant‟s burden on
the motion does not require him to negate all essential
elements of the adverse party‟s claim, action, or defense,
but rather to point out to the court that there is an absence
of factual support for one or more elements essential to
the adverse party‟s claim, action, or defense. Thereafter,
if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine
issue of material fact.

La.Code Civ.P. art. 966(C)(2).

The only evidence adduced by the Boones are the eleventh-hour

assignments which do not convey any valid tort or contract claims to the Boones.

Accordingly, we find that the assignments do not provide the Boones with a right

of action in tort or in contract to sue EnerQuest for damages to the property prior to

the Boones acquisition of the property.

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Stipulation Pour Autrui

The Boones assert that their contract claims are still valid because,

while not actual parties, they are third party beneficiaries to the surface lease that

Lagneaux granted to EnerQuest in 2002, pursuant to La.Civ.Code art. 1978.2 They

cite Hazelwood Farm, Inc. v. Liberty Oil & Gas Corp., 02-266 (La.App. 3 Cir.

4/2/03), 844 So.2d 380, writs denied, 03-1585 and 03-1624 (La. 10/31/03), 857

So.2d 476. There, the original 1926 lease provided (emphasis added): “Grantee

shall be responsible for all damages caused by his operations.” This language was

found to create a stipulation pour autrui in favor of the Hazelwood corporation,

which acquired ownership in 1991 (Hazelwood was owned by the Edmunston

family who had owned the property since 1968). The court in Hazelwood Farm,

Inc., 844 So.2d 380, explained that this finding was the law of the case based upon

a prior appeal, which more thoroughly analyzed the issue.

More specifically, in Hazelwood Farm, Inc. v. Liberty Oil & Gas

Corp., 01-345 (La.App. 3 Cir. 6/20/01), 790 So.2d 93, writ denied, 01-2115 (La.

7/26/01), 794 So.2d 834, the plaintiff was found to have no right of action as a

party to, or as an assignee of, a mineral lease because, as here, the vendor before

the plaintiff‟s vendor had reserved the mineral rights to himself. The court did,

however, find that the language of the original lease, obligating the grantee/lessee

to pay for all damages caused by its operations, conferred a benefit on the current

owner, Hazelwood:

Our jurisprudence recognizes several factors which must
be considered in determining whether a contract provides

2
“A contracting party may stipulate a benefit for a third person called a third party
beneficiary. Once the third party has manifested his intention to avail himself of the benefit, the
parties may not dissolve the contract by mutual consent without the beneficiary‟s agreement.”
La.Civ.Code art. 1978.

13

for a stipulation pour autrui. These factors are
enumerated in Andrepont v. Acadia Drilling Co., 231
So.2d 347, 351, 255 La. 347 (1969) as:

(1) The existence of a legal relationship
between the promisee and the third person
involving an obligation owed by the
promisee to the beneficiary which
performance of the promise will discharge;
(2) the existence of a factual relationship
between the promisee and the third person,
where (a) there is a possibility of future
liability either personal or real on the part of
the promisee to the beneficiary against
which performance of the promisee (sic)
will protect the former; (b) securing an
advantage for the third person may
beneficially affect the promisee in a material
way; (c) there are ties of kinship or other
circumstances indicating that a benefit by
way of gratuity was intended. See Smith,
Third Party Beneficiaries in Louisiana: The
Stipulation Pour Autrui, 11 Tul.L.Rev. 18,
58 (1936).

Hazelwood Farm, Inc., 790 So.2d at 100.

The Hazelwood court did not specifically apply the individual factors

above, but rather focused upon language of the lease in Andrepont, and the almost

identical language in the lease in Hazelwood. In Andrepont, a share crop tenant

and the landowner entered into a verbal lease wherein the landowner allowed the

tenant to farm soybeans on the land in return for twenty percent of his crop. Later,

the owner also granted the oil and gas defendant a lease; but the owner negotiated

broader language so that the final version of the lease protected not just the

owner/lessor but also protected the farmer/lessee, Mr. Andrepont:

The printed form used as the oil and gas lease initially
read, “The Lessee shall be responsible for all damages to
timber and growing crops of the Lessor caused by
Lessee‟s operations.” Id. at 349. The words “to timber
and growing crops of Lessor” were then deleted so that

14

the lease read “The Lessee shall be responsible for all
damages caused by Lessee‟s operations.” Id.

Upon reviewing this language, the Louisiana
Supreme Court found it to create a stipulation pour
autrui. In doing so, the court noted, “[Andrepont] is
seeking to enforce a benefit stipulated in his favor by the
landowner lessor as a condition of a commutative
contract between the landowner lessor and the oil and gas
lessee. Defendants, as assignees of the oil and gas lessee,
are, therefore, parties to the contract in which the
stipulation is a condition....” Id. at 350. Therefore, the
court reasoned that Andrepont, as beneficiary of the
stipulation, had a direct right of action against the lessee
to recover his damages.

Hazelwood Farm, Inc., 790 So.2d at 100-01.

Because the language in the lease was strikingly similar to that in

Andrepont, the Hazelwood court interpreted the lease as providing a stipulation

pour autrui in favor of Hazelwood. Likewise, in Magnolia Coal Terminal v.

Phillips Oil Company, 576 So.2d 475, 477 (La. 1991) (emphasis added), also cited

by the Boones, the lease stated, “Lessee shall pay for all damages caused by

Lessee‟s operations . . . .”

Magnolia Coal, 576 So.2d 475, a highly distinguishable case, did not

discuss stipulation pour autrui but did allow the new landowner, Magnolia, to

recover against the current lessee, Phillips Oil, quoting the above language from

the mineral lease retained by the original owners. The suit was for continuing

damage caused by the improper plugging of a well that was leaking a gallon of oil

per hour. During Magnolia‟s purchase negotiations, Phillips‟ predecessor,

Aminoil, which later merged with Phillips, took responsibility for plugging the

well and cleaning the property; and it agreed in writing to take care of the problem.

Two years after Magnolia spent almost $12 million to purchase and begin

developing the 2,200-acre tract, Aminoil abandoned its efforts, but oil pockets

15

reappeared two months later. Magnolia lost its financial support on an $86 million

terminal and stopped construction due to contract failures. The Louisiana Supreme

Court awarded Magnolia $2.1 million for surface damages.

In discussing jurisdictional conflicts, where the commissioner of

conservation had wrongly found the well to have been properly plugged, the court

characterized Magnolia‟s action for property damages as a private and contractual

cause of action not in the purview of the mineral code. The court then stated:

“Magnolia‟s right to recover damages is a property right arising out of the original

lease and attached to the property.” Id. at 483. The court cited Andrepont, 231

So.2d 347, for this proposition. Since Andrepont does not contain this language,

we surmise that it is a reference to the landowner‟s right to receive its part of the

damages before or separately from the damages paid to the share cropper,

Andrepont, by the oil and gas lessee, pursuant to La.R.S. 9:3204. In spite of the

contextual dissimilarities, it is this quote from Magnolia Coal that the plaintiffs

have cryptically and improvidently pulled from the case without further analysis

and without reconciling it with Eagle Pipe twenty years later.

Here, the defendant EnerQuest, predecessor of the defendant Petro

“E,” did not agree to do anything on the property, but rather, completely vacated

the property and sold all of its assets and obligations a year before the Boones

purchased the property, as discussed fully below. Moreover, the Boones did not

introduce the mineral lease for a comparison of the language. And here, there was

no continuing damage by EnerQuest, as a continuing tort is one in which the

tortfeasor “perpetuates the injury through overt, persistent, and ongoing acts.”

Eagle Pipe, 79 So.3d at 279. We find no support for the plaintiffs‟ position in the

Magnolia Coal case.

16

The only lease in the record between a former owner and EnerQuest,

is the 2002 surface lease granted by Lagneaux before its sale of the property to

Primeaux in 2003. The surface lease that Lagneaux granted to EnerQuest did not

contain language similar to the above language or address damages in any manner.

It allowed EnerQuest to use the surface of the land for constructing and accessing

its facilities and obligated EnerQuest to remove its fixtures and restore the land as

nearly as practicable to its original condition within six months after the lease

expired. It acknowledged the receipt of adequate and sufficient consideration for

this access, presumably the lease payments and any other income from the

minerals by which Lagneaux would profit when EnerQuest brought the product to

the surface. It extended the provisions of the lease to the heirs, devisees,

executors, administrators, representatives, successors, and assigns of the lessor and

the lessee. However, the provisions it extended did not include money damages or

property damages.

Nor could the parties have intended in 2002 for a benefit to inure to a

future purchaser who owned no mineral rights and who stood to gain nothing by an

oil and gas lessee‟s presence on the land. There could not be an acknowledgment

of consideration received in such scenario. Moreover, under the Andrepont

factors, there was no legal or factual relationship between EnerQuest and the

Boones. Mr. Boone admitted in his deposition that he had never met Lagneaux.

The intention of the parties and the language regarding damages is

paramount in the jurisprudence on stipulations pour autrui. In Broussard v.

Northcott Exploration Co., Inc., 481 So.2d 125, 127 (La.1986), the Louisiana

Supreme Court found no stipulation pour autrui in favor of the plaintiff even

though an attempt to modify the language, similar to Andrepont, was made. The

17

court reiterated that a stipulation pour autrui exists when some advantage to a third

person is created as a condition or consideration of a commutative contract:

In order to determine if a stipulation exists, we must look
to the intention of the parties at the time the mineral lease
was negotiated. This can best be accomplished by
comparing the standard damage clause found in the
original version of the mineral lease to the modified
version agreed to by the parties. The unmodified version
of the Damage Clause read as follows:

“The Lessee shall be responsible for all
damages to timber and growing crops of
Lessor caused by Lessee‟s operations.”

In negotiating the mineral lease the parties
modified the phrase “for all damages to timber and
growing crops” to read “for all surface damages.”
However, they did not modify the mineral lease to
expand [the defendant/lessee‟s] liability beyond the
“damages of the lessor.” For this reason, we can easily
distinguish Andrepont v. Acadia Drilling Co., 255 La.
347, 231 So.2d 347 (1969), and Hargroder v. Columbia
Gulf Transmission Co., 290 So.2d 874 (La.1974).

Likewise, in Lejeune Bros., Inc. v. Goodrich Petroleum Co., 06-1557,

p. 8 (La. App. 3 Cir. 11/28/07), 981 So.2d 23, 29, writ denied, 08-298 (La. 4/4/08),

978 So.2d 327, the court compared the lease at issue to the lease in Broussard and

found no stipulation pour autrui in favor of the plaintiffs:

As in Broussard, the damage clause in the Baez
Lease was similarly modified. The original damage
clause . . . read, “The Lessee shall be responsible for all
damages to timber and growing crops of Lessor caused
by Lessee‟s operations.” However, in the final version
the words “timber and growing crops of” were struck out,
and the clause read “The Lessee shall be responsible for
all damages to Lessor caused by Lessee‟s operations.”
Thus, just as in Broussard, the damages permitted by the
Baez Lease were limited to the damages suffered by the
Lessor, Mr. Baez. The trial court did not err in finding
LeJeune Brothers was not a third party beneficiary of the
Baez Lease.

18

In Wagoner v. Chevron USA Inc., 45,507 (La.App. 2 Cir. 8/18/10) 55

So.3d 12, writ denied, 10-2773 (La. 3/2/12), 83 So.3d 1032, which we find

particularly illustrative due to the factual similarities involving the same legal

issues as those herein, the second circuit found no stipulation pour autrui in favor

of the current owner pursuant to a former lessee‟s mineral lease with a former

owner. Based upon the subsequent purchaser doctrine, finding no conveyance of

rights in the acts of sale, and finding no language conferring third party rights such

as the language in Magnolia Coal Terminal, the Wagoner court found that the

plaintiff had no right to sue for pre-acquisition damages under the mineral leases

obtained by three former oil and gas lessees. The assignees/lessees who were still

operating on the land after the plaintiff‟s purchase of the property were not

dismissed in the judgment affirmed.

More recently than Andrepont, the Louisiana Supreme Court has

identified three criteria for determining whether contracting parties have provided

a benefit for a third party:

1) the stipulation for a third party is manifestly clear; 2)
there is certainty as to the benefit provided the third
party; and 3) the benefit is not a mere incident of the
contract between the promisor and the promisee. . . .

The most basic requirement of a stipulation pour
autrui is that the contract manifest a clear intention to
benefit the third party; absent such a clear manifestation,
a party claiming to be a third party beneficiary cannot
meet his burden of proof. A stipulation pour autrui is
never presumed. The party claiming the benefit bears the
burden of proof.

Joseph v. Hospital Service Dist. No. 2 of Parish of St. Mary, 05-2364, pp. 8-9 (La.

10/15/06), 939 So.2d 1206, 1212 (citations omitted) (footnote omitted);

La.Civ.Code art. 1978; La.Civ.Code art. 1831; see also Eagle Pipe and Supply,

19

Inc., 79 So.3d 246. For the reasons sated, we find that the plaintiffs have not met

their burden of proving that they are third party beneficiaries under the contracts as

asserted.

The 2002 Surface Lease

The Boones argue that the 2002 surface lease between Lagneaux and

EnerQuest had a ten-year term; that it was effective until 2012 which included the

ownership of the Boones who purchased the property in August, 2005; and that

there was no evidence that it was assigned to another operator. We disagree. As

previously discussed, Lagneaux withheld its leases and contractual rights from the

assignment to the Boones, and in any event the surface lease did not provide for

damages. It only provided for restoration which was not due until six months after

the lease expired. Also as discussed, the Boones were not parties to the lease, and

the lease did not provide a stipulation pour autrui in favor of the Boones.

Moreover, the lease had an effective date of August 1, 2002, meaning that it would

have expired as of August 1, 2012, and the Boones did not obtain the assignments

until late September, 2012. Accordingly, “it was impossible to transfer rights to an

assignee under an expired . . . lease.” See Lejeune Bros., Inc., 981 So.2d at 28.

In addition to there being no valid assignment from Lagneaux, the

record is clear that EnerQuest ceased its operations on the property as of April 30,

2004, and sold all of its physical and contractual rights, including its leases, to

Petro “E.” On April 17, 2004, EnerQuest executed an “Assignment and Bill of

Sale” to Petro “E” of all of its rights, title and interest in the subject property. The

sale also included all personal property, fixtures, facilities, tanks, pumps,

equipment, machinery, wells, wellheads, licenses, permits, easements, rights of

20

way, leases, contracts, operating and other agreements, “whether of record or not,”

relating to the properties. This sale was effective on May 1, 2004.

The EnerQuest conveyance to Petro “E” included (emphasis added)

“[a]ll rights incident to the Properties, including without limitation, all rights with

respect to the use and occupation of the surface of and the subsurface depths under

the Properties.” The sale and assignment obligated Petro “E” to plug and abandon

all wells as required by regulatory authorities, to level all dumps, fill in all pits,

remove all debris, and otherwise restore the surface of the land as required in the

mineral servitude or leases, and to comply with all applicable orders and

regulations. Thus, the surface lease rights and obligations were sold and assigned

to Petro “E,” and EnerQuest had no presence on the property and no interest in the

property, physical, contractual, or otherwise, after April 30, 2004, over a year

before the plaintiffs purchased the property on August 26, 2005.

The Boones argue that EnerQuest operated on the property until 2004,

and that a personal action has a liberative prescription of ten years under

La.Civ.Code art. 3499. That article states: “Unless otherwise provided by

legislation, a personal action is subject to a liberative prescription of ten years.”

La.Civ.Code art. 3499. This article follows numerous other articles providing for

shorter, more specific prescriptive periods, including previously discussed article

3492 which governs claims for property damage and provides a one-year

prescriptive period. With regard to a ten-year prescriptive period for a personal

action arising in contract, we have already found that the Boones have failed to

introduce any evidence of a contract by EnerQuest that grants them a right of

action against EnerQuest. Accordingly, the Boones have not produced evidence

that provides them a right of action in tort or contract against EnerQuest.

21

Relation Back

In September 2012, two and a half years after filing suit in May 2010,

the Boones filed a second supplemental petition. The petition attached the newly

obtained assignments, attempted to create rights in the Boones as assignees of the

former owners, reiterated the earlier causes of action, and added causes of action

for fraud, conspiracy, concerted action, and concealment. For the first time, it

alleged a cause of action under the Louisiana Environmental Quality Act, La.R.S.

30:2271-2281. The Boones assert that the new petition related back to the original

petition in 2010. We must disagree.

Even if the September 2012 assignments from the previous owners

had conferred valid and timely rights, the assignments arose two and a half years

after the original petition was filed in May of 2010. As discussed, the tort rights

had prescribed before the original petition was filed, and the assignments did not

confer a right of action in contract. The rights sought to be bestowed in the

assignments were not exigible at the time of suit in 2010. Therefore, the claims in

the new petition were supplemental, not amending, no matter how the caption of

the petition reads, and the relation back of La.Code Civ.P. art. 1153 applies only to

amending petitions. Smith v. Cutter Biological, 99-2068 (La.App. 4 Cir. 9/6/00),

770 So.2d 392.3

An “untimely filed original petition does not support the relation-

back of a new cause of action[.]” Allen v. State, Dept. of Public Safety &

Corrections, 12-430, p. 6 (La.App. 3 Cir. 11/7/12), 107 So.3d 106, 110 (quoting

3
Under La.Code Civ.P. art. 1151, a party may amend its petition if the new claims
accrued prior to filing the original suit; under Article 1155, a party may be permitted to file a
supplemental petition setting forth related items of damage or causes of action that became
exigible after the original petition was filed; but the relation back of Article 1153 applies only to
the amended petition. See Cutter Biological, 770 So.2d at 411-12.

22

Cutter Biological, 770 So.2d at 413). Nor does an original petition filed by a party

without a right of action to file it. See Naghi v. Brener, 08-2527 (La. 6/26/09), 17

So.3d 919.

In TCC Contractors, Inc. v. Hospital Service Dist. No. 3 of Parish of

Lafourche, 10-685, p. 22-23 (La.App. 1 Cir 12/8/10), 52 So.3d 1103, 1116-17, the

first circuit found that claims arising via an assignment did not become exigible

prior to the date of the assignment:

[O]ur law, as interpreted in the jurisprudence, holds that
in order for the doctrine of relation back to apply and to
circumvent the effect of prescription, a new cause of
action asserted in an amended petition (1) must have
been in existence at the time the original petition was
filed; (2) must have been vested in the plaintiffs at that
time; and (3) must arise out of “the conduct, transaction,
or occurrence set forth or attempted to be set forth in the
original pleading.” See La. C.C.P. art. 1153.

….

Because a civil action by definition can be brought
only by a person having a right of action, it stands to
reason that an action instituted by a person determined to
have no right of action cannot serve as an “action”
sufficient to interrupt prescription. See La. C.C.P. art.
681 and La. C.C. art. 3462. . . . The relation back theory
embodied in La. C.C.P. art. 1153 assumes that there is a
legally viable claim to which the pleading can relate
back. Naghi v. Brener, 08-2527, p. 10 (La. 6/26/09), 17
So.3d 919, 925. . . . Because of the “strictly personal”
character of the right to file suit, the plaintiffs‟ right to do
so can be given legal effect only from the effective date
of the assignment, and the assignment could not
retroactively cure the initial absence of a right of action
by the plaintiffs.

23

Accordingly, the claims asserted in the Boones‟ second supplemental

petition do not relate back to the original petition.4 Moreover, as fully discussed

above, the assignments do not confer existing rights. Additionally, the Boones

have not shown that they had an exigible claim under La.R.S. 30:2276 at the time

of the original petition or at the time the LEQA claim was first alleged in the

second supplemental petition. Contrary to the allegations in the petitions, Mr.

Boone testified in his deposition on May 8, 2013, that he had not incurred any

remediation costs as required by La.R.S. 30:2276(G)(3). See Margone, LLC v.

Addison Resources, Inc., 04-70 (La.App. 3 Cir. 12/15/04), 896 So.2d 113, writ

denied, 05-139 (La.3/24/05), 896 So.2d 1039. Further contrary to the Boones‟

assertions in brief, the original and first supplemental petitions do not assert

solidary liability, and the additional claims and causes of action in the second

supplemental petition do not relate back to the original petition.

V.

CONCLUSION

Based upon the foregoing, we affirm the trial court‟s judgment

granting the motion for summary judgment and exception of prescription in favor

of EnerQuest Oil & Gas, LLC. Costs of this appeal are assessed to the plaintiffs,

Carlos and Lori Boone.

AFFIRMED.

4
The Boones‟ characterization of their status change as one of a simple change in
capacity and therefore analogous to Giroir v. South Louisiana Medical Center, Div. of Hospitals,
475 So.2d 1040 (La.1985), is misplaced. The wrongful death claim that was allowed to relate
back in Giroir had accrued prior to the time of the filing of the original petition.

24