The Suva Corporation v. Jane Renee Johnson Smith

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-328 consolidated with 17-418

THE SUVA CORPORATION, ET AL.

VERSUS

JANE RENEE JOHNSON SMITH, ET AL.

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 63,173 & NO. 64,615
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Shannon J. Gremillion, Judges.

AFFIRMED.

John S. Bradford
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
P. O. Box 2900
Lake Charles, LA 70602
(337) 436-9491
COUNSEL FOR PLAINTIFF/APPELLANT:
Leon Lucien Languirand, Executor, Succession of Martha Ann Hardee
Languirand

Michael S. Coyle
Attorney at Law
Post Office Box 636
Ruston, LA 71273-0636
(318) 254-8200
COUNSEL FOR DEFENDANTS/APPELLANTS:
Jane Renee Johnson Smith
Leon Lucien Languirand, Executor, Succession of Martha Ann Hardee
Languirand
Trentice Van Johnson, Jr.
Hugh Clark Hinton
Samual Jackson Hinton
Robert Hugh Johnson

William A. Jones, Jr.
Attorney at Law
Post Office Box 2644
Ruston, LA 71273-2644
(318) 255-2944
COUNSEL FOR DEFENDANTS/APPELLANTS:
Hugh Clark Hinton
Samual Jackson Hinton
Robert Hugh Johnson
Trentice Van Johnson, Jr.
Jane Renee Johnson Smith
Leon Lucien Languirand, Executor, Succession of Martha Ann Hardee
Languirand

Charles E. Tabor
Gregorio, Chafin, Johnson, Poolson & Tabor, L.L.C.
7600 Fern Avenue, Building 700
Shreveport, LA 71105
(318) 865-8680
COUNSEL FOR PLAINTIFFS/APPELLEES:
The Suva Corporation
Hardee Family Properties, LLC
T. W. Hardee Properties, LLC

GREMILLION, Judge.

The defendants,1 heirs to real property located in Sabine Parish, appeal the

trial court’s finding of a mutual mistake in a deed executed in 1949 by brothers,

Hugh and Thomas Hardee, resulting in the plaintiffs 2 being declared the sole

owners of tracts of land in question. 3 For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND4

In September 2010, the Suva plaintiffs filed a petition for declaratory

judgment seeking to be declared the owners of certain immovable property located

in Sabine Parish. In October 2010, the Suva plaintiffs filed their first amending

and supplemental petition to the petition for declaratory judgment urging that a

mutual error existed in the March 9, 1949 deed from Hugh to Thomas that omitted

some property from the deed. 5 In response, the defendants filed peremptory

exceptions of prescription, no right of action, and no cause of action. The Suva

plaintiffs, thereafter, filed a second amending and supplemental petition to their

1
The defendants are Jane Renee Johnson Smith, Trentice Van Johnson, Jr., Robert Hugh
Johnson, Martha Ann Hardee Languirand, Hugh Clark Hinton, and Samual Jackson Hinton.
2
The plaintiffs are all descendants of Thomas (or businesses comprised of Thomas’s
descendants). The Suva Corporation, LLC, Hardee Family Properties, LLC, and T.W. Hardee
Properties, LLC, filed suit in 2010 (Suva plaintiffs). The Salamander Land, LLC and SHS
Investments plaintiffs filed their petition for declaratory judgment in May 2012 (Salamander
plaintiffs). We refer to them collectively as plaintiffs.
3
These consolidated matters include docket numbers 17-328 (the Suva plaintiffs) and 17-
418 (the Salamander plaintiffs).
4
This factual background follows the history of the first-filed suit. Similar pleadings
were filed by the Salamander plaintiffs once they filed their petition for declaratory judgment in
2012. Because the substantive matters are the same, we will not repeat the details of the
proceedings.
5
The first amending and supplemental petition stated:

39.
The mutual error was some property was omitted from the deed
including the following described property, to wit:

The North Half of the Southeast Quarter of Section 10, Township 8
North, Range 11 West, Sabine Parish, Louisiana and the Southwest
Quarter of the Southeast Quarter of Section 10, Township 8 North, Range
11 West, Sabine Parish, Louisiana.

petition for declaratory judgment pleading in the alternative ten years good faith

acquisitive prescription and thirty years acquisitive prescription of the disputed

property. In their third amending and supplemental petition, the Suva plaintiffs

again noted the mutual error omitting the following described property: 6

44.

The mutual error was that some property was omitted from the

Deed including the following described property to-wit:

The Southwest quarter of Northwest quarter of
Section 15, Township 8 North, Range 11 West, Sabine
Parish, Louisiana which property was subsequently
transferred by the Deeds, Judgment of Possession and
Partition as described in Plaintiff’s original Petition to
T.W. Hardee Properties, LLC.

The petition further urged that T.W. Hardee Properties, LLC and its

ancestors had possessed the above property since 1947. The defendants filed a

reconventional demand urging that the Suva plaintiffs had wrongfully received

revenue from timber sales and oil and gas leases from the disputed property. In

response, the Suva plaintiffs filed an exception of prescription.7 8

6
The original Suva petition sought a declaratory judgment naming:

a) THE SUVA CORPORATION is the owner of the
Southwest Quarter of the Southeast Quarter of Section10,
Township 8 North, Range 11 West, Sabine Parish, Louisiana.

b) T.W. Hardee Properties, LLC is the owner of the
Northeast Quarter of the Southeast Quarter of Section 10,
Township 8 North, Range 11 West, Sabine Parish, Louisiana.

c) Hardee Family Properties, LLC is the owner [of] the
Northwest Quarter of the Southeast Quarter of Section 10,
Township 8 North, Range 11 West, Sabine Parish, Louisiana.
7
That exception was granted finding that any claims the plaintiffs-in-reconvention may
have had against the defendants-in-reconvention were barred by liberative prescription of ten
years.
8
Later, the trial court vacated the judgment granting the defendants’ peremptory
exceptions of prescription and no cause of action and denied the exceptions based on its
underlying findings that plaintiffs had no knowledge of the subject property until 2010 and,
therefore, prescription could not have begun to run until then.
2

In August 2015, the Suva plaintiffs filed a motion to consolidate this action

with docket number 17-418. The Salamander case was tried first. The Salamander

petition described the disputed property as:

Tract 1: The West Half of the Southwest Quarter of the
Southwest Quarter of Section 1 and the Southwest Quarter of the
Southwest Quarter of Section 3, all in Township 8 North, Range 11
West, Sabine Parish, Louisiana[.]

Tract 2: The Southeast Quarter of the Southwest Quarter of
Section 3, Township 8 North, Range 11 West, Sabine Parish,
Louisiana[.]

At the conclusion of the case, the Salamander record was introduced into the

Suva case. Following the submission of the documentary evidence to the trial

court, it rendered a judgment in December 2016, in favor of all of the plaintiffs,

finding that they are the sole owners of the property. The trial court issued

extensive findings of fact and conclusions of law. The trial court concluded that

the brothers omitted the disputed tracts by mutual mistake and reformed the 1949

deed to include the disputed tracts.

The defendants appeal the trial court’s judgment and assign as error:

1. In order to reform a deed on the basis of mutual mistake and
add undescribed tracts to the conveyance, Louisiana Courts
have imposed an extraordinary burden of proof on plaintiffs,
requiring the plaintiff to prove mutual mistake by “clear, and
the strongest possible, proof;” therefore, it was error for the
Trial Court to reform the 1949 Deed on what, at best, can only
be characterized as inconclusive evidence.

2. It is well established that a deed, as the last expression of the
parties’ agreement, controls and supersedes whatever previous
discussions or agreements may have taken place between the
parties; therefore, the Trial Court erred when it imported the
omnibus language contained in the Purchase Agreement into
the 1949 Deed and used that imported omnibus language as the
basis for adding the Disputed Tracts to the 1949 Deed.

3

3. In determining whether to reform the 1949 Deed and in
deciding whether the Plaintiffs had carried their burden of
proving mutual mistake by “clear, and the strongest possible,
proof,” the Trial Court was obligated to consider all the
evidence; therefore, it was error for the Trial Court to disregard
the facts that:

a. The 1949 Deed did not include the omnibus language
contained in the Purchase Agreement;

b. Hugh Hardee retained other tracts of Sabine land he
owned in 1949 and which he sold in 1953;

c. In 1953, during Thomas’s lifetime, he sold some of the
land he had retained in 1949.

d. Hugh Hardee gave Thomas Hardee his power of attorney
to add any tracts mistakenly left off the 1949 Deed and
Thomas Hardee exercised that power of attorney to add
certain tracts, but did not use that power of attorney to
add the Disputed Tracts.

DISCUSSION

Standard of Review

The defendants argue that we should review the record de novo because this

case involves “contract interpretation.” However, we have previously held that the

determination of whether a mutual error existed such that contract reformation is

warranted is a question of fact, and we will not disturb the trial court’s findings

unless it was clearly wrong. See Teche Realty & Inv. v. Morrow, 95-1473 (La.App.

3 Cir. 4/17/96), 673 So.2d 1145; WMC Mortgage Corp. v. Weatherly, 07-75 (La.

App. 3 Cir. 6/13/07), 963 So.2d 413, writ denied, 07-1475 (La. 10/5/07), 964 So.2d

945. Accordingly, if reasonable people could reach the same conclusion after a

review of the record, the trial court’s finding cannot be clearly wrong even if, had

we been sitting as the trier of fact, we may have reached a different conclusion.

Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). The

trial court issued extensive reasons for its findings, stating in part:

4

The 1949 Agreement and subject deed recorded March 17, 1949,
was without question an omnibus designation translative of title of
the subject tracts as it reflects the unequivocal intent of Hugh M.
Hardee to sell to his brother, Thomas W. Hardee, Jr., “all of the
immovable property owned by him as of July 31, 1947, in the
Parish [] of . . . Sabine, State of Louisiana . . . [except for certain
specified parcels].” . . . Based on the terms of the 1949
Agreement alone, the omnibus designation language therein
serves as though the lands were specifically described in it. Albeit
that a few stray parcels of the considerable collection of parcels
transferred in the singular transaction, amounting to
approximately 2500 acres, were not specifically described in the
companion deed,[9] the omnibus designation language essentially
cures that defect be it caused by error or not.

...

The agreement executed on March 9, 1949,
contemporaneously with the subject deed, when read together,
form the basis of the brothers’ agreement. The 1949 Agreement
expressly provides that Hugh was selling all of his property to
Thomas. . . . Had there been intent to delete the Omitted Property
from the sale, logic stands that it would have been likewise
removed from the 1949 Agreement. It should be remembered that
in rural Pleasant Hill, Louisiana in 1949, the ease and precision
now afforded by computers and online conveyance records were
then the subject of science fiction. Such an error could not be
unexpected with the large swath of remote rural undeveloped land
that was made subject of this transaction. Further, the fact that
Hugh granted Thomas power of attorney, also contemporaneously
executed with the 1949 Agreement and subject deed, to correct
any problems with the subject deed, further buttresses the omnibus
designation intent of the parties that Hugh was washing his hand
of “all of the immovable property owned by him as of July 31,
1947, in the Parishes of Caddo, DeSoto, Natchitoches, Red River,
and Sabine, State of Louisiana, and in Miller County, Arkansas”
to the exclusion of specifically identified properties. Thomas
Hardee employed that power of attorney to add a parcel of land,

9
We note that there are various descriptions of the disputed property in the record. Prior
to the trial court’s ruling, it requested “precise descriptions of the subject properties each party
understands is at issue.” The trial court’s judgment described the disputed property as:

The West Half of the Southwest Quarter of the Southwest Quarter of
Section 1 and the Southwest Quarter of the Southwest Quarter of Section 3, all in
Township 8 North, Range 11 West, Sabine Parish, Louisiana

and

The Southeast Quarter of the Southwest Quarter of Section 3, Township 8
North, Range 11 West, Sabine Parish, Louisiana.

5

Section 15, back into the 1949 Deed, a parcel adjacent to the
Omitted Property. This court finds it very logical that as the
Section 15 property was omitted “through error, oversight and
inadvertence” from the 1949 Deed and was added into it, likewise
was the Omitted Property here. The court concludes that the
brothers failed to discover the remaining Omitted Property prior to
their deaths.

Deed Reformation

The moving party in a reformation action bears a heavy burden of proving a

mutual mistake or error by clear and convincing proof. Teche, 673 So.2d 1145.

An act of sale is usually a final expression of the parties’ intent following a

negotiation process. Id. An authentic act is full proof of the agreement it contains

as against the parties. La.Code Civ.P. art. 1835. Reformation is an equitable

remedy which is available to correct errors or mistakes in written instruments only

when the instrument does not reflect the parties’ true intent. Teche, 673 So.2d

1145; Agurs v. Holt, 232 La. 1026, 95 So.2d 644 (1957). A mutual mistake is

a mistake shared by both parties to the instrument at the time of
reducing their agreement to writing, and the mistake is mutual if
the contract has been written in terms which violate the
understanding of both parties; that is, if it appears that both have
done what neither intended. The evidence of mutuality must
relate to the time of the execution of the instrument and show that
the parties then intended to say one thing and by mistake
expressed another and different thing.

Succession of Jones v. Jones, 486 So.2d 1124, 1127 (La.App. 2 Cir.), writ denied,

489 So.2d 249 (La.1986). Parol evidence is admissible to prove the parties’ true

intent. Catyb v. Deville, 246 So.2d 41 (La.App. 3 Cir. 1971).

Evidence

In this case, there are no living parties or witnesses to the contract.

Therefore, the brothers’ intent in creating the 1949 Deed must be gleaned from the

documents and actions of the parties at the time.

6

The defendants argue that the trial court rewrote the 1949 Deed by adding

the omnibus language from the Purchase Agreement to the Deed. The trial court

found that since the two documents were executed contemporaneously, they must

be read in “pari materia.” The defendants argue that the best evidence of Hugh’s

lack of intent to convey all of his Sabine Parish land to Thomas is the fact that he

retained ownership in other Sabine Parish land which he later sold in 1953 during

Thomas’ lifetime. The defendants argue that reformation of a sixty-seven-year old

contract on such grounds jeopardizes the stability of land titles. They further argue

that the omnibus “all my land in Sabine Parish” language found in the Purchase

Agreement was intentionally excluded from the 1949 Deed, and that it easily could

have been included since the same lawyer drafted both documents.

The plaintiffs, on the other hand, argue that the disputed property, although

included in the 1949 Agreement, was unintentionally left out of the 1949 Deed

which is detailed and massive, covering thousands of acres of land. The plaintiffs

urge that the omission was not discovered until nearly sixty years later when a land

man was trying to lease the property, and during the sixty years, the plaintiffs had

been in continuous and uninterrupted control and possession of the disputed

property. They further argue that the documents and facts surrounding the Deed

unequivocally prove that Hugh intended to convey all of his partnership property

to Thomas, and that the brothers were aware that some of the 2500 acres may not

have been properly listed; thus, Hugh gave Thomas the specific power to correct

any mistakes relating to the Deed. The plaintiffs point to the 1955 ratification

executed by Hugh in favor of Skelly Oil Company relating to the disputed property

in which Hugh affirmed that all bonus and rental moneys are to the be paid to

Thomas.

7

1949 Purchase Agreement

The March 9, 1949 signed “Contract and Agreement” (Agreement), which

was filed in the conveyance records on March 17, 1949, provides in part that Hugh

“contracted and sold to [Thomas10] all of the immovable property owned by him as

of July 31, 1947, in the Parishes of Caddo, DeSoto, Natchitoches, Red River and

Sabine, State of Louisiana, and in Miller County, Arkansas, except the property

owned by [Hugh] in Block 20, Block 34, and Block 35 of the Town of Pleasant

Hill, Louisiana . . .”

The Agreement further conveyed to Thomas “all of [Hugh’s] undivided

interest in and to the partnership which existed between [Hugh] and [Thomas], and

which was operated and carried on under the name of T.W. Hardee &

Company . . .” Hugh further reserved “one-half (1/2) of his interest in the oil, gas

and other mineral rights, in which reservation he agreed that [Thomas] would have

unlimited right to execute oil, gas and mineral leases covering said property and

receive and receipt for all bonus money . . .”

In the Agreement, Hugh executed an irrevocable power of attorney unto

Thomas, making Thomas his “agent and attorney in fact for the purpose of

executing any and all correction deeds and other documents necessary to cure and

perfect titles to any of the immovable property owned by [Hugh] prior to and as of

July 31, 1947.” In consideration for the sale, Hugh paid Thomas $100,000 payable

in four installments of $25,000.

The Agreement was signed by both Hugh and Thomas.

10
The contract refers to the “Party of the First Part,” i.e., Hugh and the “Party of the
Second Part,” i.e., Thomas. For ease of reference we will use their names rather than this
language.
8

1949 Deed

An image of the Deed is included for reference below to show the complex

descriptions of the vast amount of land conveyed from Hugh to Thomas. The

Deed was also executed on March 9, 1949, and filed into the conveyance records

on March 17, 1949.

9

10

1949 Power of Attorney

A separate “Power of Attorney,” dated March 9, 1949, was also recorded on

March 17, 1949, in which Hugh declared Thomas to be

his true and lawful agent and attorney in fact, . . . to execute any
and all correction deeds, documents and other instruments necessary
to perfect any and all land title to any immovable property owned by
said Hugh M. Hardee prior to July 31, 1947, situated in the Parishes of

11

Sabine, Desoto, Red River and Caddo, State of Louisiana, which
authority herein conveyed is irrevocable.

1950 Correction Deed

In December 1950, pursuant to the power of attorney executed by Hugh in

favor of Thomas, Thomas executed a Correction Deed that added one of the

omitted tracts11 that was included in the 1949 Agreement. The Correction Deed

affirmed Hugh’s reservation of 50 percent of the mineral royalties realized from

the property. The Correction Deed clearly incorporates the substance and language

found in the Agreement. The Correction Deed12 stated in pertinent part:

WHEREAS, on the 9th day of March, 1949, [Thomas] executed
a contract with Hugh M. Hardee, wherein it was agreed that Hugh M.
Hardee would convey to him all of the real estate, or immovable
property, owned by him except certain property situated in the Town
of Pleasant Hill, Louisiana; and,

WHEREAS, Pursuant to the terms of said contract the said
Hugh M. Hardee authorized him, the said Thomas W. Hardee, Jr., a
power of attorney duly executed to execute any and all correction
deeds, documents and other instruments necessary to perfect the title
to any and all lands to be conveyed according to the terms of said
contract, as will more fully appear from said power of attorney which
is recorded . . . .

WHEREAS, through error, oversight and inadvertence there
was omitted from said deed dated March 9, 1949 and recorded under
Instrument No 128,625, as aforesaid, the following described property
situated in the parish of Sabine, Louisiana, to-wit:

The Southwest Quarter of the Northwest quarter of Section
fifteen (15), township eight (8) north, Range eleven (11) west.

NOW, THEREFORE, in order to carry out the original
intention as expressed by the said Hugh M. Hardee and Thomas W.
Hardee, Jr. in said contract dated March 9, 1949 . . . .

11
The parties stipulate that this tract, located in Section 15, is not in dispute.
12
We note that there are multiple spacing and typographical errors related to the use of a
manual typewriter that do not affect substance, which we have taken the liberty of correcting for
ease of reading.
12

Skelly Oil Ratification

On September 15, 1955, Thomas granted an Oil, Gas and Mineral Lease in

favor of Skelly Oil Company on Section 10 of the omitted property. 13 On

September 29, 1955, Hugh executed a “Ratification” of the lease, which stated:14

This the said Hugh M. Hardee hereby ratifies and confirms said
lease the same as if he was a lessor in said lease and hereby stipulates
that all bonus and rental moneys are to be paid to Thomas W. Hardee,
Jr. and that he, the said Hugh M. Hardee, is to receive his
proportionate part of the royalties due and payable under said lease.

That the said Hugh M. Hardee hereby ratifies and confirms the
lease referred to above in all of its terms and conditions.

Plaintiffs argue that the ratification is important, because the only documents

giving Thomas the right to receive bonus and rental payments are the 1949

Agreement and the 1949 Deed, and that Hugh would not have ratified it if he did

not believe that the disputed property was part of 1949 Deed. The trial court

agreed, finding:

This fact indubitably suggests that at the time of the ratification,
Hugh Hardee thought the omitted properties were included in the
[subject deed]. This court is at sea to come up with a plausible
alternative explanation. This court’s conclusion is buttressed by the
testimony of Defendants’ expert, Damon Weger, who not only
stated that the 1949 Agreement and the 1949 Deed were the only
documents that gave Thomas the right to receive bonus and rental
funds, but that Hugh Hardee’s fifty-percent mineral reservation
would require such a ratification. This further propels the court to
conclude that the omitted properties were meant to be in the subject
deed per the 1949 Agreement.

13
More particularly, the lease in favor of Skelly Oil Company covered:

The North Half of the Southeast quarter and the Southwest quarter
of the Southeast quarter of Section 10, Township 8 North, Range 11
West[.]
14
We note that there are multiple spacing errors related to the use of a manual typewriter
that do not affect substance, which we have taken the liberty of correcting for ease of reading.

13

Testimony and Tax Bills

Multiple defendants testified via deposition that they had no knowledge of

the disputed property until 2010, when contacted by a land man. The record also

included tax bills showing that Thomas and his descendants have always paid the

tax bills associated with the disputed property. Further, numerous transactions

such as partitions and successions involving the disputed property were carried out

by Thomas’s heirs.

Based on our review of the record, we find that reasonable people could

easily conclude, as the trial court did, that the plaintiffs proved by clear and

convincing evidence that the disputed property was omitted by mutual mistake of

the brothers, based on the simultaneously executed 1949 Purchase Agreement and

Deed, the Correction Deed, and the Skelly Oil Ratification document. Further, the

treatment of the property following the brothers’ deaths and the defendants’

stipulation that they had no prior knowledge of the omitted property supports a

finding that Hugh intended to convey this property to Thomas as part of the

original Agreement. Furthermore, the defendants’ reliance on the fact that Hugh

owned other property in Sabine Parish ignores the fact that the deed intended to

convey all of the partnership-owned property in Sabine parish. The disputed

property was adjacent to other partnership property that was inadvertently omitted.

The Skelly Oil ratification further buttresses plaintiffs’ claims that Hugh intended

to convey all of the property included in the Agreement and that the omitted

parcels resulted from mutual error. Accordingly, we find no error in the trial

court’s ruling reforming the Deed and declaring the plaintiffs the sole owners of

the tracts.

14

CONCLUSION

The judgment of the trial court reforming the 1949 Deed to include the

omitted tracts and placing the plaintiffs in full possession of the omitted property is

affirmed. All costs of this appeal are assessed against the defendants-appellants,

Jane Renee Johnson Smith, Trentice Van Johnson, Jr., Robert Hugh Johnson,

Martha Ann Hardee Languirand, Hugh Clark Hinton, and Samual Jackson Hinton.

AFFIRMED.

15