Steven Trahan v. Bp America Production Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-267

STEVEN TRAHAN, ET AL.

VERSUS

BP AMERICA PRODUCTION COMPANY, ET AL.

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APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NO. 10-18837
HONORABLE PENELOPE Q. RICHARD, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

REVERSED AND REMANDED.

Victor L. Marcello
Donald T. Carmouche
John H. Carmouche
William R. Coenen, III
Brian T. Carmouche
Todd J. Wimberley
Ross Donnes
D. Adele Owen
Leah C. Poole
Caroline H. Martin
Talbot, Carmouche & Marzullo
17405 Perkins Road
Baton Rouge, Louisiana 70810
(225) 400-9991
Counsel for Plaintiffs/Appellants:
Steven Trahan, et al.

Chad E. Mudd
David P. Brucchaus
M. Keith Prudhomme
Matthew P. Keating
Mudd & Bruchhaus, LLC
410 East College Street
Lake Charles, Louisiana 70605
(337) 562-2327
Counsel for Plaintiffs/Appellants:
Steven Trahan, et al.

Lawrence G. Gettys
Heard Robins Cloud LLP
9191 Siegen Lane, Building 7
Baton Rouge, Louisiana 70810
(866) 517-9520
Counsel for Plaintiffs/Appellants:
Steven Trahan, et al.

Stephen Taggart
Stephen Taggart & Associates
3532 Highway 365
Nederland, Texas 77627
(409) 722-3375
Counsel for Plaintiffs/Appellants:
Steven Trahan, et al.

George Arceneaux, III
Lawrence P. Simon, Jr.
Penny L. Malbrew
George H. Robinson, Jr.
William E. Kellner
Brittan Bush
Liskow & Lewis
Post Office Box 52008
Lafayette, Louisiana 70505
(337) 232-7424
Counsel for Defendant/Appellee:
BP America Production Company

Katherine Seegers Roth
Kathryn Z Gonski
Kelly B. Becker
Liskow & Lewis
701 Poydras Street, Suite 5000
New Orleans, Louisiana 70139-5099
(504) 581-7979
Counsel for Defendant/Appellee:
BP America Production Company

KEATY, Judge.

Plaintiffs/landowners in this legacy litigation1 appeal a judgment granting a

motion for summary judgment based on prescription filed by defendant, BP

America Production Company (BP), and dismissing their claims against it.

Finding that numerous genuine issues of material fact remain, we reverse.

FACTS AND PROCEDURAL HISTORY

According to a Petition for Damages filed on March 3, 2011, Plaintiffs own

property in Cameron Parish, Louisiana, (hereinafter referred to as “the property”),

which had sustained both surface and sub-surface contamination as a result of the

historical oil and gas exploration and production activities of four named

defendants, including BP, or their predecessors in interest. Plaintiffs sought

remediation and other damages based on causes of action sounding in tort and in

breach of contract and/or the Mineral Code.

Several months before a jury trial that was scheduled to take place in the fall

of 2015, BP filed a motion for summary judgment seeking to have Plaintiffs’

claims against it dismissed on the basis of prescription. Plaintiffs opposed the

motion, asserting that they lacked actual or constructive knowledge of their causes

of action until less than a year before they filed suit. Following a hearing, the trial

court issued written reasons for judgment, and later a Final Judgment, granting

1
In Marin v. Exxon Mobil Corp., 09-2368, 09-2371, p. 1 (La. 10/19/10), 48 So.3d 234,
238, n.1, the Louisiana Supreme Court explained:

“Legacy litigation” refers to hundreds of cases filed by landowners
seeking damages from oil and gas exploration companies for alleged
environmental damage in the wake of this Court’s decision in Corbello v. Iowa
Production, 02-0826 (La.2/25/03), 850 So.2d 686. These types of actions are
known as “legacy litigation” because they often arise from operations conducted
many decades ago, leaving an unwanted “legacy” in the form of actual or alleged
contamination. Loulan Pitre, Jr., “Legacy Litigation” and Act 312 of 2006, 20
Tul. Envt. L.J. 347, 34 (Summer 2007).

BP’s motion for summary judgment, dismissing Plaintiffs’ claims against it, and

designating the judgment as final and appealable under La.Code Civ.P. art.

1915(A). Plaintiffs timely appealed.

DISCUSSION

Law

Summary judgment “shall be rendered . . . if the pleadings, depositions,

answers to interrogatories, and admission, together with the affidavits, if any,

admitted for purpose of the motion for summary judgment, show that there is no

genuine issue as to any material fact, and that mover is entitled to judgment as a

matter of law.” La.Code Civ.P. art. 966(B)(2).2 “A genuine issue of material fact

is one as to which reasonable persons could disagree; if reasonable persons could

reach only one conclusion, there is no need for trial on that issue and summary

judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12),

94 So.3d 750, 755.

As noted in La.Code Civ.P. art. 966(A)(2), “[t]he summary judgment

procedure is designed to secure the just, speedy, and inexpensive determination of

every action. . . . The procedure is favored and shall be construed to accomplish

these ends.” Nevertheless:

[t]he 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

2
Louisiana Code of Civil Procedure 966 was amended by 2015 La. Acts No. 422, § 1,
effective January 1, 2016. Accordingly, we refer to the version of the article that was in place
when BP’s motion for summary judgment was heard on September 28, 2015.

2

evidentiary burden of proof at trial, there is no genuine issue of
material fact.

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

The Louisiana Supreme Court has held that “[s]ummary judgment is seldom

appropriate for determinations based on subjective facts, such as motive, intent,

good faith, knowledge and malice.” Smith v. Our Lady of the Lake Hosp., Inc., 93-

2512, p. 28 (La. 7/5/94), 639 So.2d 730, 751. In Jagneaux v. Frohn, 11-461, p. 6

(La.App. 3 Cir. 10/5/11), 74 So.3d 309, 313 (quoting Johnson v. Gov’t Emps. Ins.

Co., 05-476, pp. 5-6 (La.App. 3 Cir. 11/2/05), 916 So.2d 451, 454), upon appellate

review of a trial court’s grant of summary judgment, this court held that “it is not

the function of the trial court to determine or inquire into the merits of issues raised,

and the trial court may not weigh the conflicting evidence on a material fact. If

evidence presented is subject to conflicting interpretations, summary judgment is

not proper.”

“Although typically asserted through the procedural vehicle of the

peremptory exception, the defense of prescription may also be raised by motion for

summary judgment.” Hogg v. Chevron USA, Inc., 09-2632, 09-2635, p. 6 (La.

7/6/10), 45 So.3d 991, 997. “When prescription is raised by motion for summary

judgment, review is de novo, using the same criteria used by the district court in

determining whether summary judgment is appropriate.” Id. In Labbe Service

Garage, Inc. v. LBM Distributors, Inc., 94-1043, pp. 10-11 (La.App. 3 Cir. 2/1/95),

650 So.2d 824, 829 (citation omitted), this court noted:

[T]he filing of a motion for summary judgment based on the plea of
prescription practically subjects the movers to a higher burden of
proof than if the movers had filed only the peremptory exception of
prescription. The burden of proof on the movers for summary
judgment . . . is particularly exacting in that they are required to prove,
based solely on documentary evidence and without the benefit of

3

testimony at a hearing, that there is no genuine material factual issue
in dispute regarding the day upon which plaintiff acquired or should
have acquired knowledge of the damage. On the other hand, pleading
prescription alone subjects the exceptor to proving, by a
preponderance of the evidence, that the plaintiff’s claim has
prescribed. Additionally, if on the face of the petition it appears that
prescription has run, the burden shifts to the plaintiff to prove an
interruption or suspension of the prescriptive period. At a hearing on
the exception of prescription, the parties are allowed to call witnesses
to testify and the factfinder is allowed to weigh credibility. On
summary judgment, this is prohibited.

See also, Hogg, 45 So.3d 991. “Damage is sustained, within the meaning of

prescription, only when it has manifested itself with sufficient certainty to support

the accrual of a cause of action. Cole v. Celotex Corporation, 620 So.2d 1154

(La.1993). The damages suffered must at least be actual and appreciable in

quality.” Labbe, 650 So.2d at 829.

In this case, Plaintiffs’ claims that derive from contracts or mineral leases

fall under the ten-year liberative prescriptive period applicable to personal actions

found in La.Civ.Code art. 3499. Plaintiffs’ tort claims are governed by

La.Civ.Code art. 3493, which provides that “when damage 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.”

“[T]he ultimate issue in determining whether a plaintiff had constructive

knowledge sufficient to commence a prescriptive period is the reasonableness of

the plaintiff’s action or inaction in light of his education, intelligence, and the

nature of the defendant’s conduct.” Marin, 48 So.3d at 246. In Hogg, 45 So.3d at

997-98, the supreme court noted:

Constructive knowledge has been defined by our courts as
whatever notice is enough to excite attention and put the injured party
on guard or call for inquiry. Campo v. Correa, 01-2707, p. 12
(La.6/21/02), 828 So.2d 502, 510-511. Such notice is tantamount to
knowledge or notice of everything to which a reasonable inquiry

4

might lead, and such information or knowledge as ought to reasonably
put the injured party on inquiry is sufficient to start the running of
prescription. Id. In assessing whether an injured party possessed
constructive knowledge sufficient to commence the running of
prescription, this court’s ultimate consideration is the reasonableness
of the injured party’s action or inaction in light of the surrounding
circumstances.
In Labbe, 650 So.2d at 829-30, we explained:

The doctrine of contra non valentem agere nulla currit
praescriptio prevents the running of liberative prescription where the
cause of action is not known or reasonably knowable by the plaintiff.
Often, it is difficult to identify the precise time at which the claimant
becomes aware of sufficient facts to begin the running of prescription.

The supreme court elaborated in Marin, 48 So.3d at 245, (footnote omitted):

In cases involving property damage, the fourth category of contra non
valentem, otherwise known as the “discovery rule,” is encompassed in
the prescriptive period proscribed by La. C.C. art. 3493, as both
essentially suspend prescription until the plaintiff knew, or reasonably
should have known of the damage. While the contra non valentem
“discovery rule” is only to be applied in extreme circumstances, and
prescriptive statutes are to be interpreted broadly in favor of
maintaining a party’s claim, the substantive analysis is the same under
both La. C.C. art. 3493 and the discovery rule of contra non valentem.

If the defendant establishes that the plaintiff’s case has prescribed, the

plaintiff who “assert[s] the benefit of contra non valentum” bears “the burden of

proof of its requisite elements and applicability.” Peak Performance Physical

Therapy & Fitness, LLC v. Hibernia Corp., 07-2206, p. 7 (La.App. 1 Cir. 6/6/08),

992 So.2d 527, 531, writ denied, 08-1478 (La. 10/3/08), 992 So.2d 1018.

Plaintiffs’ Assignments of Error

Plaintiffs assert the following assignments of error (footnote omitted):

1. The trial court committed error in dismissing the claims of the
plaintiffs against BP on grounds of prescription.

2. The trial court committed error by imposing the burden of proof
of prescription on the plaintiffs.

5

3. The trial court erroneously applied the procedural rules
governing summary judgment.

4. The trial court committed error in its interpretation of the
“discovery rule” component of contra non valentum and in its
interpretation of the “discovery rule” as expressed in Civil Code
article 3493.

5. The trial court committed error in making an equitable
determination on summary judgment.

6. The trial court committed error in finding that the “plaintiffs
have made no showing that they discovered any new
information within one year of filing suit that triggered a new
awareness on the part of the landowners.”

7. The trial court committed error in finding that the plaintiffs’
lack of knowledge was attributable to their own “wilfulness and
neglect.”
8. The trial court committed error to the extent it imputed the
knowledge of one or more co-owners to the remaining co-
owners of the same tract.

ANALYSIS

Burden of Proof

At the outset, we note that the general premise of BP’s motion for summary

judgment was that Plaintiffs’ claims against it had prescribed on the face of the

petition, and thus, the burden of proof shifted to Plaintiffs to prove that prescription

was suspended by the application of contra non valentum. That premise is

fundamentally flawed. Because BP chose to file a motion for summary judgment

based on prescription rather than an exception of prescription, no such shifting of

the burden of proof to the non-movant occurred. See Hogg, 45 So.3d 991; Labbe,

650 So.2d 824. Instead, as the mover on summary judgment, BP was “required to

prove, based solely on documentary evidence and without the benefit of testimony

at a hearing, that there is no genuine material factual issue in dispute regarding the

6

date upon which plaintiffs acquired actual or constructive knowledge of the

damage.”3 Hogg, 45 So.3d at 998 (citing Labbe, 650 So.2d 824).

As evidenced in its reasons for judgment, the trial court in this case found

that BP produced evidence that its operations on the property ceased more than

“forty-five years” ago and that Plaintiffs’ deposition testimony revealed that they

had “not learned anything new within one year of filing suit.” Thereafter, citing

La.Code Civ.P. art. 966(C)(2), the trial court stated that because BP had “come

forward with some evidence to point out to the court that there is an absence of

factual support for one or more elements essential to the [P]laintiffs’ claims, the

[P]laintiffs must produce factual support sufficient to establish that they will be

able to satisfy their evidentiary burden of proof at trial.” (Emphasis added). As

the aforementioned quote from Hogg dictates, however, BP bore the burden of

proof at the trial of its motion for summary judgment based on prescription, which

burden required it to prove “that there is no genuine material factual issue in

dispute regarding the date upon which plaintiffs acquired actual or constructive

knowledge of the damage.” Hogg, 45 So.3d at 998. Thus, the trial court should

not have applied the “point[ing] out” provision of Article 966(C)(2) upon finding

that BP produced “some evidence” that Plaintiffs lacked factual support for their

claims, as “some evidence” does not equate to proving that no genuine issues of

material fact remained. The reasons for judgment further revealed that upon

determining that Plaintiffs’ claims were facially prescribed, the trial court shifted

the burden of proof to Plaintiffs to prove the applicability of contra non valentum

without first requiring that BP meet the “particularly exacting” burden of proving

3
We note that the Hogg court was applying the discovery rule of La.Civ.Code art. 3493
rather than the doctrine of contra non valentum.

7

the date Plaintiffs knew or should have known of the damage BP caused to the

property. Labbe, 650 So.2d at 829. In both instances, the trial court erred in

shifting the burden of proof to Plaintiffs. As such, we find merit to Plaintiffs’

second assignment of error.

BP’s Motion for Summary Judgment

BP’s memorandum in support of its motion for summary judgment

contained a fifty-six item Statement of Undisputed Material Facts (SUMF) upon

which it based its argument that Plaintiffs’ claims were prescribed. BP asserted

that the presence of a “White Sandy Area” that lacked vegetation on two of the

nine tracts that make up the property provided all Plaintiffs and/or their ancestors

in title with actual or constructive knowledge of damage to the property that was

open and obvious and which should have prompted them to investigate further to

ascertain the cause and extent of the contamination upon which this suit is based.

BP attached to its motion historical and current aerial photography which show a

sandy area that was evident since the 1940s. Historical well files were also

attached to BP’s motion which showed that most of the wells operated on the

property by BPs predecessors were plugged and abandoned in the 1930s, with the

last well having been plugged and abandoned in 1951. BP made the following

statements in its SUMF with regard to Plaintiffs’ knowledge of the white sandy

area, which were supported by references to four Plaintiffs’ depositions (footnotes

omitted):

45. Although unsure if he saw the White Sandy Area, Plaintiff
Raymond Reeds testified that he saw an area that lacked
vegetation while rabbit hunting when he was about fifteen or
sixteen years old.

8

46. Plaintiff Shanna Vincent Gilbert saw the White Sandy Area on
the property and testified that is[sic] has been there for “quite
some time.”

47. Plaintiff Ernest Lowery has seen the White Sandy Area from
the nearby roadway and testified it’s been there for a good
while.

48. Plaintiff Craig Vincent testified that the White Sandy Area had
been there all his life-- since September of 1951.[4]

49. Mr. Vincent helped his father clean up the Property in the
1960s. During the cleanup, they picked up leftover boards,
pipes, sucker rods and part of a tank.

50. Mr. Vincent worked in the oil and gas industry for
approximately forty years. He remember[s] that grass would die
if someone spilled produced water on the ground. The White
Sandy Area on the property is consistent with produced water
spills he observed while working in the oil and gas industry.

BP submitted that those six so-called undisputed material facts proved that the four

Plaintiffs who had seen the white sandy area had actual knowledge of damages

sufficient to commence the running of prescription. While it noted in its SUMF

that deposition testimony from seventeen of the twenty-six Plaintiffs revealed that

most of them had rarely, if ever, been to the property, BP argued that any lack of

knowledge of their potential claims against it was caused by their neglect in failing

to exercise any diligence, much less reasonable diligence, to observe and ascertain

the condition of the property. Thus, BP claimed that those Plaintiffs had

constructive knowledge of damages sufficient to commence the running of

prescription. Based upon the length of time between the cessation of “any alleged

damage-causing act or omission attributable to BP” and the date upon which

Plaintiffs filed their petition, BP alleged that every Plaintiff’s claims against it

prescribed decades before they filed this suit on March 3, 2011.

4
Because Mr. Vincent was born in 1951, the implication that he had knowledge of the
sandy area that dated back to his birth is wrong.

9

Plaintiffs’ Memorandum in Opposition to BP’s Motion for Summary Judgment
In opposition to BP’s claim that there was no genuine issue of material fact

regarding their knowledge of their cause of action, and/or the timing of any such

knowledge, Plaintiffs pointed to paragraph fourteen of their original petition

wherein they asserted:

Plaintiffs did not have actual or constructive knowledge of the
pollution described in this petition until less than a year prior to filing
of this suit. Plaintiffs did not have knowledge of the causal
connection between the defendants’ fault, negligence and breach of
contract and the pollution at issue until less than one year prior to the
filing of this suit. Plaintiffs did not have knowledge of the causal
connection between the defendants’ fault, negligence and breach of
contract and the pollution at issue until less than a year prior to the
filing of this suit.

While Plaintiffs did not specifically contest the underlying facts which BP claimed

were undisputed, they vehemently disagreed with the conclusions that BP drew

from those facts, and they insisted that the following material facts remained in

dispute (footnote omitted):

1. Whether plaintiff-landowners or their ancestors-in-title had any
actual or constructive knowledge more than one year prior to filing
this lawsuit of a potential cause of action against defendants for
damage to their property as a result of oil and gas operations.

2. Whether plaintiff-landowners or their ancestors-in-title had any
actual or constructive knowledge more than one year prior to filing
of this lawsuit that defendants’ conduct caused or contributed to
damage to the subject property.

3. Whether plaintiff-landowners or their ancestors-in-title had any
actual or constructive knowledge that the subject property was
adversely affected in some way.

4. Whether plaintiff-landowners or their ancestors-in-title had any
actual or constructive knowledge that the property damage, which
is the subject of this lawsuit, if any, was caused by defendants’ oil
and gas exploration and production operations.

10

5. Whether plaintiff-landowners or their ancestors-in-title possess any
actual or constructive knowledge of the damages described in the
original petition until less than a year prior to filing suit.

Plaintiffs cited Winterrowd v. Travelers Indemnity Co., 462 So.2d 639

(La.1985) in opposition to BP’s contention that their claims were prescribed by the

mere fact that their petition was filed sixty years after BP’s predecessors’ last

operations on the property. The plaintiff in that case was injured in 1976 by a

malfunctioning punch press that was manufactured in 1907. The undisputed facts

established a causal connection between the plaintiff’s injuries and the

manufacturer’s failure to warn of a danger which it knew about since the time it

built the punch press. The supreme court affirmed a judgment in favor of the

plaintiff after finding that the manufacturer of the press violated its duty to warn

“of any danger inherent in the normal use of its product which is not within the

knowledge of an ordinary user.” Id. at 642. While they acknowledged that

Winterrowd was not a prescription case, Plaintiffs nonetheless argued that it stands

for the proposition that “[l]ong delays between the actions of a defendant and the

litigation of claims based on such actions are commonplace.”

In support of their denial that they had actual knowledge that BP’s actions

may have contaminated the property, Plaintiffs’ opposition referenced excerpts

from sixteen of their depositions, including the four Plaintiffs whose knowledge of

the white sandy area, according to BP, should be imputed to all Plaintiffs.

Although one of those Plaintiffs, Craig Vincent, acknowledged in his deposition

that the white sandy area resembled areas where he had seen produced water spills

during his career in the oil and gas industry, he explained that such bare areas do

not necessarily indicate contamination, and he stated that he had no reason to

believe the property was contaminated until he was contacted by his attorney. He

11

noted that cows had grazed on the property for many years without ever getting

sick as a result. Mr. Vincent also stated that if an oil company had contaminated a

property, he would expect the oil company and the state to address the problem.

Deposition testimony from the remaining three Plaintiffs who were aware of the

white sandy area indicated that they never saw signs of oil and gas operations on

the property, and they never saw signs that the property may have been

contaminated. In addition, both Shanna Gilbert and Raymond Reeds knew the

property had been used for cattle grazing, and Ernest Lowery and Mr. Reeds knew

of dirt from the property being sold. The deposition excerpts from the other twelve

Plaintiffs that were submitted in opposition to BP’s motion were somewhat

formulaic but revealed that they were generally unaware of any oilfield equipment

on the property or of any signs that the property was damaged or contaminated.

Two of those Plaintiffs, knew, however, that the property had been used for cattle

grazing, and two others recalled that topsoil from the property had been sold in the

past. The deposition excerpts revealed that most Plaintiffs learned about the

condition of the property from legal counsel or family members shortly before or

after suit was filed. Affidavits from eight Plaintiffs were also attached to their

opposition memorandum. While none of the affiants had been on all of the

property, they each stated that the entire property was rural. Each affiant stated

that none of their relatives or ancestors in title ever complained to them of any

pollution or damage to the property as a result of oil and gas exploration and

production activities that had taken place on the property. In addition, the affiants

stated that they were never contacted by an oil company or state agency regarding

the possibility of the property being contaminated as a result of any past oil and gas

operations. Each of the affiants stated that they “joined this lawsuit as a result of

12

becoming aware of litigation involving nearby property and the possibility of

environmental damage associated with oil and gas operations on that property after

this suit was filed.” 5

With regard to BP’s claim that they or their ancestors in title should be

deemed to have constructive knowledge of the property’s condition, Plaintiffs

asserted in their opposition memorandum that their “education, intelligence and

background vis-à-vis oil and gas operations, industry standards, rules and

regulation, normal wear and tear, excessive use and exceedances pales in

comparison to that of defendants and their predecessors-in-interest.” In specific

reference to BP’s assertion that the white sandy area should have put them on

constructive notice of any contamination, Plaintiffs submitted that their deposition

and affidavit testimony reflected that none of the physical characteristics of the

area gave them reason to relate the area to oil and gas operations or to know that

the area was caused by toxic chemicals coming from those operations. They

further asserted that they had no suspicion that BP’s operations were excessive or

improper. Finally, Plaintiffs claimed that they “required the evidence of oilfield

damage in the same vicinity of their property to connect the dots” and prompt them

to investigate further.

Relevant Caselaw Regarding Actual and Constructive Knowledge

Two cases rendered by the Louisiana Supreme Court in 2010 provide us

with guidance in determining when a plaintiff should be deemed to have actual or

constructive knowledge sufficient to commence prescription in a property damage

case. In Hogg, 45 So.3d 991, the supreme court reversed the trial court’s denial of

5
One of the affiants, plaintiff Donna Lynn Pitre Istre, stated that her mother had joined
this lawsuit and that she inherited the property after her mother died in 2013.

13

the defendants’ motion for summary judgment based on prescription in a case

brought by five plaintiffs who alleged that their immovable property had been

contaminated from three formerly leaking underground gasoline storage tanks at a

Chevron service station operating on neighboring property. After the tanks were

replaced in 1997, the plaintiffs received two letters from the Louisiana Department

of Environmental Quality (LDEQ) informing them that environmental

contamination had been detected near the Chevron station and that they may later

be asked for permission for access to their property for testing purposes. A

December 20, 2001 letter told the plaintiffs that “water samples collected from [an]

unnamed stream” on their property “indicated ‘the presence of chemicals

commonly found in gasoline.’” Hogg, 45 So.3d at 995. The letter “specifically

explained: ‘Due to the direction of groundwater flow, there is a possibility that

gasoline may have migrated underground from the Burt’s Chevron site to your

property or that such migration may occur in the future.’” Id. In a second letter

dated April 26, 2002, the LDEQ informed the plaintiffs that due to the results of air

sampling at a stream near Burt’s Chevron, some of which sampling was taken on

their property, they should limit the time spent in that area.

On September 12, 2006, a company hired by the LDEQ sent correspondence

to the plaintiffs seeking to access their property to perform remediation. The

plaintiffs filed suit on September 6, 2007, against the owners of the neighboring

property, the operator of the service station, and Chevron U.S.A, provider of the

tanks and the gasoline stored in them. The defendants responded by filing a

motion for summary judgment in which they claimed that the plaintiffs’ claims

were prescribed because they “acquired, or should have acquired, knowledge of the

contamination and damage to their property with the receipt of the 2001 and 2002

14

letters from LDEQ, but failed to file suit until 2007.” Id. at 966. In opposing the

motion, the plaintiffs asserted that they did not interpret the letters as putting them

on notice that the defendants’ conduct had damaged their property. The trial court

denied the defendants’ motion, finding that genuine issues of material fact

remained “regarding whether the LDEQ letters of 2001 and 2002 provided

constructive knowledge of tortious conduct and damage sufficient to commence

the running of prescription.” Id. After the appellate court declined to exercise

supervisory jurisdiction, the supreme court granted certiorari, and framed the issue

before it as follows:

[T]he dispute in this case centers around whether the information
conveyed in the letters was sufficient to commence the running of
prescription. Thus, while the question of subjective knowledge is
ordinarily inappropriate for resolution by summary judgment, such a
question is not presented here. In this case, there is no question as to
what the plaintiffs knew and when. Plaintiffs’ knowledge is contained
in the letters. The question presented is whether this knowledge
constitutes actual or constructive knowledge sufficient to commence
the running of prescription. Because there are no factual conflicts
presented, only conflicting conclusions based on the facts (the LDEQ
letters), this question is one appropriate for resolution by summary
judgment.
Id. at 999 (footnotes omitted). On the merits, the supreme court concluded that the

information contained in the LDEQ letters “was sufficient to excite attention and

put a reasonable person on guard to call for inquiry, which is the essence of

constructive knowledge,” and that “plaintiffs’ inaction in light of such action was

unreasonable.” Id. at 1001. Ultimately, the Hogg court found that “[w]ith the

receipt of the second letter from LDEQ in 2002, the plaintiffs acquired constructive

knowledge of the damage to their immovable property sufficient to commence the

running of prescription.” Id.

15

Marin, 48 So.3d 234, came before the supreme court after a trial on the

merits, but it is nonetheless instructive regarding when the prescriptive period

starts to run and when the discovery rule of contra non valentum should apply in a

legacy case. The matter concerned two pieces of property. The first, known as the

“Marin Property,” was owned by three siblings and the second, known as the

“Breaux Property,” was owned by one of the siblings and her husband. Pursuant to

mineral and surface leases entered into in the 1930s, Exxon Mobil Corporation, or

its predecessors, conducted oil and gas operations on the two properties and built

open and unlined pits where contaminants from those operations accumulated.

Waste byproducts from the pits were released into a bayou on the property. The

evidence showed that sugarcane farmers on the Marin Property knew by 1958 that

their crops near the pit areas would not properly grow, and by the 1980s, the

plaintiffs had the same concerns. Plaintiff Clyde Breaux, serving as a “family

representative,” made several demands on Exxon between 1988 and 1990 that it

clean their properties and rid them of contamination so they could resume their

farming activities. Id. at 240. By 1991, Exxon had closed all of the pits on the

plaintiffs’ properties and had assured them, via regular communication with

Breaux, that it had remediated those areas in compliance with mandated state

standards. The plaintiffs filed suit against Exxon in November of 2003 “for

remediation of the soil and groundwater and other damages” after an

environmental assessment conducted several months earlier revealed “significant

contamination” on both properties. Id. at 241. After a trial on the merits, the trial

court found that the plaintiffs’ tort claims were suspended by contra non valentum.

On writs, the supreme court disagreed, finding:

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[The evidence is clear that plaintiffs knew by 1991 that sugarcane
would not grow properly in the pit areas and had made demand on
Exxon to clean and close the pits so that they could grow sugarcane.
They knew that some of the pits were closed with sludge remaining at
the bottom of the pits after the first attempt at closure, and they kept
samples of the contents of this sludge. They knew that the pits
contained some oilfield wastes (barites/drilling mud). They knew that
certain of the pit areas were not stable enough to support farm
equipment. They knew that Exxon was having trouble cleaning and
closing the pits sufficiently to meet the applicable statewide standards.
Although Exxon assured plaintiffs that they were in compliance in
1991, they remained suspicious of Exxon’s assurances that the pits
were remediated to statewide regulatory standards. After the
attempted remediation in 1991, plaintiffs had the opportunity to
observe that a healthy sugarcane crop was still not growing in spite of
Exxon’s efforts. Further, no new damage became apparent that was
not already apparent in 1991; in fact, the pit areas still will not support
healthy cane growth.

Id. at 248. The supreme court further held:

[The plaintiffs] had knowledge of damage that was apparent, i.e.,
dying sugarcane. Even though the damage they discovered later was
more extensive, the sugarcane damage was an outward sign of “actual
and appreciable damage,” and was sufficient information to excite
attention and put plaintiffs on guard and call for inquiry. We
acknowledge that sugarcane takes some time to grow and by 1991,
they would not have known whether the attempts at remediation were
successful. In fact, Breaux testified it would take about 4 years to
know if the sugarcane was going to be healthy. However, Breaux also
testified that the sugarcane never did grow in some of the pit areas and
has still not grown there today. We find that at least by 1995,
plaintiffs had sufficient information to excite their attention and they
should have investigated further at that time. Therefore, it was
unreasonable to wait until 2003 to file suit.

Id. at 249-50.

Analysis

As the mover on summary judgment, BP was “required to prove, based

solely on documentary evidence and without the benefit of testimony at a hearing,

that there is no genuine material factual issue in dispute regarding the date upon

which plaintiffs acquired actual or constructive knowledge of the damage.” Hogg,

45 So.3d at 998. After having completed a de novo review of the evidence

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submitted in favor of and against BP’s motion for summary judgment, we conclude

that BP is not entitled to summary judgment in its favor because many genuine

issues of material fact remain in dispute.

BP contends that a white sandy area on two of the nine tracts that make up

the property, and of which it offered evidence that only four Plaintiffs had seen,

provided all Plaintiffs and/or their ancestors in title with actual or constructive

knowledge of damage that was open and obvious and which should have prompted

them to investigate further to ascertain the cause and extent of the contamination

upon which this suit is based.

In order to prevail on its motion for summary judgment, BP first had to

prove that no genuine issue of material fact remained regarding whether Plaintiffs

sustained “actual and appreciable” damage to the property so as to excite their

attention and lead them to delve further into the source and extent of that damage.

Labbe, 650 So.2d at 829. BP provided only scant evidence of the characteristics of

the white sandy area, simply describing it as an area that lacked vegetation and that

had been observable by air since the 1940s. Relying on the deposition testimony

of Craig Vincent, one of the four Plaintiffs who had actually seen the white sandy

area, BP asserted that the following statements were undisputed material facts:

“Mr. Vincent worked in the oil and gas industry for approximately forty years. He

remember[s] that grass would die if someone spilled produced water on the ground.

The White Sandy Area on the property is consistent with produced water spills he

observed while working in the oil and gas industry.” In its memorandum in

support of summary judgment, BP argued that “[l]ike the damaged sugar cane in

Marin, the White Sandy Area provided Plaintiffs with constructive knowledge of

actual and appreciable damage” and gave them “sufficient information to excite

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their attention[,] and they should have investigated further.” We disagree. In this

case, there were no crops whose growth was affected by an entity that was known

to have contaminated the property and that had assured the landowners that it was

remediating the property to state standards. Marin, 48 So.3d 234. In addition,

Plaintiffs herein produced evidence that the property was entirely rural and that it

had historically been used for cattle grazing and topsoil excavation. While an

argument could be made that Craig Vincent should have recognized that the white

sandy area evidenced actual and substantial damage attributable to oil and gas

operations, his deposition testimony revealed that he did not suspect that the area

was contaminated. Thus, we would have to make a determination as to his

subjective knowledge of whether the white sandy area indicated damage that

should have prompted him to investigate further, a task that the supreme court has

said is “ordinarily inappropriate for resolution by summary judgment” See Hogg,

45 So.3d at 999; Smith, 639 So.2d 730. Moreover, BP produced no evidence that

any of the twenty-five other Plaintiffs or their ancestors in title had any, or enough,

experience in the oil and gas industry to even remotely suggest that they should

have recognized that the white sandy area indicated “actual and appreciable”

damage. Labbe, 650 So.2d at 829. In addition, because BP alleged that the current

and historical aerial photographs attached to its motion showed that the

characteristics of the property are the same now as they were in the 1940s, it has

not shown that Plaintiffs’ ancestors in title would have seen damage that was more

actual and substantial than the damage that currently exists. Based on the evidence

presented, we conclude that genuine issues of material fact remain regarding

whether Plaintiffs’ property had sustained “actual and appreciable” damage so as

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to start the running of prescription against them or their ancestors in title. Labbe,

650 So.2d at 829.

Even if we were to conclude that BP had met its burden of proving that the

white sandy area was damaged enough to begin the tolling of prescription, BP

would also have to prove that Plaintiffs or their ancestors in title acquired or should

have acquired knowledge of the damage and the date they acquired or should have

acquired such knowledge. BP would have this court find that all twenty-six

Plaintiffs acquired or should have acquired knowledge of the damage to their

property, even though the evidence it produced showed that only four Plaintiffs

had actually seen the white sandy area, because aerial photographs dating back to

1940 evidenced the same white sandy area that is depicted in current aerial photos.

With regard to the Plaintiffs who admittedly rarely or never visited the property,

BP argued that they should be deemed to have constructive knowledge of the

damage because any lack of knowledge was due to their collective neglect of the

property. As evidenced by its reasons for judgment, the trial court agreed with

BP’s argument, finding that it was “unreasonable for a plaintiff to have never

stepped foot on his/her property” and that “plaintiffs’ lack of knowledge about

their property is attributable to their own willfulness and neglect.”

Plaintiffs opposed BP’s attempt to lump them together to determine their

actual or constructive knowledge as to their damages, arguing that BP must prove

what knowledge each individual Plaintiff had or should have had. Given their

“education, intelligence, and the nature of [BP’s] conduct,” Plaintiffs argue that

none of them had any reason to know that the property may have been damaged by

BP or its predecessors. See Marin, 48 So.3d at 246. Moreover, as evidenced in the

eight affidavits submitted by Plaintiffs in opposition to BP’s motion, each denied

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having received any notice from their ancestors in title or any other source

informing them of actual contamination to their property caused by an identified

entity. As such, Plaintiffs submit that this case is distinguishable from Marin,

where one of the four plaintiffs acted as a “family representative” and the

plaintiffs’ case was filed approximately twelve years after they were found to have

actual knowledge that Exxon had contaminated their property. See Marin, 48

So.3d at 240.

The property at issue in this case is rural and consists of nine separate tracts

owned by twenty-six Plaintiffs, some, but not all, of whom are related. The white

sandy area was located only on tracts seven and nine. However, as shown in BP’s

SUMF, each tract has up to seven owners, and while tracts five, six, and seven

have the same seven owners, the remaining tracts do not have overlapping

ownership. Unlike the five plaintiffs in Hogg, 45 So.3d 991, the Plaintiffs herein

do not co-own the same tract of property, and there is no evidence that they or their

ancestors in title were ever told that actual contamination had been detected nearby

and could migrate to their property. BP has offered no evidence to prove each tract

of the property was accessible to the owners of the remaining tracts. On the other

hand, each of the affiants in the eight affidavits attached to Plaintiffs’ opposition

stated that they had never traversed the entire property. We find it unreasonable to

expect the owner of a rural tract of property to visit and inspect nearby tracts of

property. We, likewise, find it unreasonable to expect that a property owner would

be aware of current or historical aerial images of its property and that of its

neighbors or that such property owner would understand what was depicted in such

images had they seen them. Accordingly, we conclude that BP failed to prove that

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there are no genuine issues of material fact regarding whether any Plaintiff or their

ancestors in title had actual or constructive knowledge of their damages.

Finally, BP offered no evidence as to the date Plaintiffs acquired actual or

constructive knowledge of any such damages. Instead, it made the conclusory

argument that because the last oil and gas operations of its predecessors on the

property occurred in 1951 and because aerial photographs dating back to 1940

evidenced the same white sandy area that can still be seen in current aerial photos,

Plaintiffs’ claims prescribed before the filing of their petition on March 3, 2011. In

obvious contradiction to that argument, however, BP asserted that the following

statements6 were undisputed material facts (footnotes omitted):

51. Plaintiffs Natalie Martinez, Raymond Reeds, Ernest Lowery, Jr.,
Howard Romero, Craig Vincent, and Leon Currie first heard
about the alleged contamination from their attorneys.

52. Plaintiffs James Pratt, on behalf of Cam-Pratt, LLC, David
Currie and Kathy Melancon testified that they do not know how
they found out about the alleged contamination.

53. Plaintiff Brian Walker first learned about the potential
contamination when his uncle told him about this lawsuit.
Plaintiff James Walker first learned about the alleged
contamination from his brother, Brian Walker.

54. Plaintiff Leonidas Pittman first found out about the alleged
contamination from Leon “Larry” Currie.

55. Plaintiff Daniel Lowery first realized about the possibility of
contamination of the property when he heard about this lawsuit
being filed.

56. Plaintiffs neither testified nor offered any other proof of why
Plaintiffs chose to file suit [] in 2010 – as opposed to any other
point after the cessation of oil and gas operations on the
Property.

6
BP’s argument that contra non valentum should not apply in this case was based on
these statements. Nonetheless, we find them extremely relevant to the issue of when Plaintiffs
acquired knowledge of their damages.

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Plaintiffs cite La.Civ.Code art. 3493 in support of their claim that

prescription in tort property damage cases begins to run when a plaintiff acquires

actual or constructive knowledge of the damage, regardless of when the damaging

conduct ceases. Plaintiffs also provided documentary evidence wherein they

asserted that they did not receive knowledge of their claims or of the facts upon

which those claims were based until being notified by family members or others

less than one year before this suit was filed.

In Hogg, the supreme court found that the defendants proved the plaintiffs

had constructive knowledge of their property damage upon the receipt of a letter

from the LDEQ on April 26, 2002. Hogg, 45 So.3d at 999. In Marin, while the

supreme court did not specify the exact date the plaintiffs had actual knowledge of

damage, it found that “at least by 1995, plaintiffs had sufficient information to

excite their attention[,] and they should have investigated further at that time.”

Marin, 48 So.3d at 250.

In the instant matter, BP did not attempt to point to the date, or even the year,

that Plaintiffs or their ancestors in title acquired actual or constructive knowledge

of their damages, nor did it offer any statutory or jurisprudential authority to

support its argument that the mere passage of time starts the tolling of prescription.

In addition, BP’s SUMF contains statements which support Plaintiffs’ claims that

they lacked the knowledge upon which their suit was based until less than one year

before they filed suit. Accordingly, we find that BP failed “to prove, based solely

on documentary evidence and without the benefit of testimony at a hearing, that

there is no genuine material factual issue in dispute regarding the date upon which

plaintiffs acquired actual or constructive knowledge of the damage.” Hogg, 45

So.3d at 998. Thus, we find merit to Plaintiffs’ first assignment of error. As a

23

result, Plaintiffs’ remaining assignments of error are moot and need not be

addressed.

CONCLUSION

As noted previously, BP’s burden on summary judgment was “to prove,

based solely on documentary evidence and without the benefit of testimony at a

hearing, that there is no genuine material factual issue in dispute regarding the date

upon which plaintiffs acquired actual or constructive knowledge of the damage.”

Hogg, 45 So.3d at 998. Our de novo review of the evidence offered in support of

and against BP’s motion for summary judgment reveals the presence of several

genuine issues of material fact which preclude the grant of summary judgment in

its favor. Accordingly, the trial court erred in finding that Plaintiffs’ claims were

prescribed, and its judgment must be reversed.

DECREE

For the foregoing reasons, the judgment of the trial court granting the motion

for summary judgment based on prescription filed by defendant, BP America

Production Company (BP), and dismissing their claims against it, is reversed and

the matter is remanded. All costs of this appeal are assessed against BP.

REVERSED AND REMANDED.

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