Donald Hodge, Jr., as Administrator of Estate of Donald Hodge, Sr. v. Jared Oertling

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1071

DONALD HODGE, JR., AS ADMINISTRATOR OF ESTATE OF DONALD

HODGE, SR.

VERSUS

JARED OERTLING, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2013-4620
HONORABLE RONALD F. WARE, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

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Court composed of Elizabeth A. Pickett, Billy H. Ezell, and Candyce G. Perret,
Judges.

REVERSED AND REMANDED.

Donald Carl Hodge, Jr.
Attorney at Law
4148 Palm St.
Baton Rouge, LA 70808
(337) 794-8873
COUNSEL FOR PLAINTIFFS-APPELLANTS:
Donald Hodge, Jr., as Administrator of Estate of Donald Hodge, Sr.,
and Rachel Hodge

Billy Edward Loftin, Jr.
Jeffrey A. Carrier
Loftin, Cain & LeBlanc
113 Dr. Michael DeBakey Drive
Lake Charles, LA 70601
(337) 310-4300
COUNSEL FOR DEFENDANT-APPELLEE:
Jared Oertling

John W. Joyce
Laurence D. Lesueur
Barrasso, Usdin, Kupperman
909 Poydras, 24th Floor
New Orleans, LA 70112
(504) 589-9700
COUNSEL FOR DEFENDANT-APPELLEE:
Vigilant Ins. Co.

Ken Begnaud
In Proper Person
5237 Moss St.
Lafayette, LA 70507
DEFENDANT-APPELLEE

PERRET, Judge.

This case involves the interpretation of a settlement and release agreement

that was signed by Plaintiffs, Donald Hodge, Jr., individually and as administrator

of Donald Hodge, Sr.’s estate, and Rachel Hodge (“Appellants”), in a separate suit

arising out of a quarantine imposed by the Louisiana Department of Agriculture

and Forestry (“LDAF”) on their late father’s deer farm. Appellants filed the

current suit against Jared Oertling, Ken Begnaud, Stacy Fontenot,1 and Vigilant

Insurance Company (“Appellees”) prior to the settlement agreement at issue,

alleging that Appellees’ conduct during the quarantine harmed them, and the

Hodges sought damages. Appellees filed a motion for summary judgment

asserting the settlement agreement between the Hodges and the LDAF released

Appellants’ claims against Appellees. The trial court agreed with Appellees and

granted summary judgment, dismissing Appellants’ claims with prejudice.

Appellants now appeal. For the following reasons, we reverse and remand to the

trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Donald Hodge, Sr. (deceased) owned a whitetail deer farm (“Hodge Farm”)

in Calcasieu Parish. Sometime in October, it came to the LDAF’s attention that

the deer herd on the Hodge Farm was possibly infected with Chronic Wasting

Disease likely transmitted by six does purchased from a Pennsylvania deer farm.

Consequently, the LDAF issued a quarantine over the Hodge Farm on October 16,

2012. On or about the following day, Donald Hodge, Sr. died in a hunting

accident. He never knew of the quarantine.

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Stacy Fontenot was removed as a Defendant in the Hodges’ First Supplemental and
Amending Petition.

Following the imposition of the quarantine, the LDAF began making

attempts to locate the six infected does. However, no deer at the Hodge Farm had

tags indicating they were the six does being searched for.

Appellants filed suit against the LDAF on March 20, 2013, docket number

2013-001366-E, seeking an injunction to lift the quarantine so the farm could be

sold. In that case, Appellants asserted that the LDAF had no reason to believe the

six does ever reached Hodge Farm and that, instead, the deer were delivered to

Jared Oertling’s deer farm in Mississippi. Appellants asserted that Mr. Oertling

admitted that the six does never arrived at the Hodge Farm. However, regardless

of Mr. Oertling’s statement, the LDAF still required all deer’s tags on the Hodge

Farm to be scanned, at Appellants’ expense, to ensure none of the deer came from

the Pennsylvania farm. Additionally, Appellants asserted that the ongoing

quarantine required them to sustain the farm at their expense and prevented them

from putting the farm up for sale. In the LDAF lawsuit, Appellants not only

sought the injunction against the quarantine, but also sought to recover damages

from the LDAF that they allegedly suffered in connection with the quarantine.

On October 15, 2013, Appellants filed the instant suit against Appellees,

Jared Oertling, Ken Begnaud, and Stacy Fontenot, asserting that they granted

Appellees permission to feed the deer and check on their well-being during the

quarantine. Instead, Appellants assert that Appellees moved bucks to doe pins to

promote breeding, gave false statements to the LDAF investigators regarding the

location of the six does which impeded the investigation, and conspired to blame

Donald Hodge, Sr. Therefore, Appellants sought damages for Appellees’ actions,

which Appellants assert resulted in loss of income, expenses of maintaining the

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Hodge Farm while under quarantine, costs associated with testing the deer, the loss

of the value of the deer, and the cost of additional deer being born.

On November 4, 2013, Appellants, the Hodges, signed a settlement

agreement with the LDAF (“LDAF Settlement”) which dismissed the Hodges’ suit

against the LDAF. Under the terms of the LDAF Settlement, the LDAF was

permitted to depopulate the Hodge Farm in exchange for the LDAF’s agreement to

manage the efforts and assume the costs associated with the depopulation.

Appellants amended their petition in the instant case against Appellees,

Jared Oertling, Ken Begnaud, and Stacy Fontenot, on December 17, 2014, adding

additional general damages, asserting joint liability amongst Appellees, removing

Stacy Fontenot as a defendant, and adding Vigilant Insurance Company as a

defendant.

Thereafter, Appellees all moved for summary judgment and alleged that the

broad language in the LDAF Settlement released all claims arising from or in any

way related to the quarantine, including those Appellants asserted in the instant

suit. Appellees allege that the current suit is related to the quarantine, that

Appellants allowed the LDAF to depopulate the Hodge Farm and are now seeking

damages from Appellees that they suffered as a result of the LDAF Settlement. In

support of summary judgment, Appellees attached the petition in the LDAF suit,

excerpts from Donald Hodge’s deposition, the LDAF Settlement, and the First

Supplemental and Amending Petition in the instant suit against Appellees.

In opposition, Appellants asserted that the plain language of the LDAF

Settlement does not release claims against Appellees. Additionally, Appellants

argued that emails exchanged between Appellants and the LDAF, and on which

Appellants relied in entering the compromise, are instructive as to the intent of the

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parties to the LDAF Settlement. In support of their opposition, Appellants

attached three exhibits. Exhibits A and B were the Affidavits of Donald Hodge

and Rachel Hodge, attesting that both relied on email communications with the

LDAF and that neither intended on releasing the instant claims. Exhibit C was

email communications between Donald Hodge and Holden Hoggatt, attorney for

the LDAF, representing that the purpose of the settlement agreement was to share

the expenses associated with the depopulation of the deer herd and the release of

the department and commissioner from liability resulting from the depopulation.

The trial court granted Appellees’ motions for summary judgment, relying

on Cressy v. Huffines Hyundai McKinney, 16-712 (La.App. 3 Cir. 2/22/17), 212

So.3d 683, writ denied, 17-510 (La. 5/19/17), 220 So.3d 751. The trial court

determined that the broad language in the LDAF Settlement also compromised the

Hodges’ suit against Appellees. Appellants appeal the trial court’s judgment,

asserting two assignments of error: (1) that the trial court erred in granting

summary judgment by finding that Appellants released Appellees by signing the

LDAF Settlement, and (2) that the trial court erred in not considering affidavits and

emails offered as evidence of the parties’ intent when entering the settlement

agreement. For the following reasons, we reverse the trial court’s granting of

Appellees’ motions for summary judgment and remand this matter to the trial court

for further proceedings.

DISCUSSION

Assignment of Error One:

On appeal, this Court reviews grants of summary judgment de novo,

applying the same standards as the trial court when considering whether summary

judgment is appropriate. Suire v. Oleum Operating Co., 17-117 (La.App. 3 Cir.

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11/2/17), 235 So.3d 1215, writs denied, 18-271, 18-279 (La. 4/6/18), --So.3d--.

Louisiana Civil Code of Procedure Article 966(A)(3) provides that “a motion for

summary judgment shall be granted if the motion, memorandum, and supporting

documents show that there is no genuine issue as to material fact and that the

mover is entitled to judgment as a matter of law.” “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.” Cressy, 212 So.3d at 686. Although seldom

suitable for determinations based on subjective facts such as intent, “whether a

plaintiff’s claims against a certain defendant should be dismissed because of a

release entered into by the plaintiff can be resolved in the context of a motion for

summary judgment.” Id.

The LDAF Settlement was a compromise entered into by Appellants and

Mike Strain, in his capacity as the LDAF Commissioner.

A compromise is an agreement between two or more
persons, who, for preventing or putting an end to a
lawsuit, adjust their differences by mutual consent, in the
manner which they agree on, and which every one of
them prefers to the hope of gaining, balanced by the
danger of losing.

Hudson v. Progressive Sec. Ins. Co., 43, 857, p. 6-7 (La.App. 2 Cir. 12/10/08), 1

So.3d 627, 631, writ denied, 09-235 (La. 3/27/09), 5 So.3d 148. Therefore, we

must consider the code articles governing compromises. As the supreme court set

forth in Brown Drillers, Inc., 630 So.2d 741, 748 (La. 1/14/94) (citations omitted):

LSA-C.C. Art. 3071 further provides that a compromise
is a written contract. It follows that the compromise
instrument is the law between the parties and must be
interpreted according to the parties’ true intent. It also
follows that the compromise instrument is governed by

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the same general rules of construction applicable to
contracts.

LSA-C.C. Art. 2046 sets forth a general rule of
construction, providing that “[w]hen 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.” The underscored word
“further” in this article signifies the true nature of
contractual interpretation. The determination that the
language contained in a contract is clear and explicit, in
itself, involves an interpretative process. For that reason,
LSA-C.C. Art. 2046 emphasizes that the process involves
no further interpretation, as opposed to no interpretation
at all.

Louisiana Civil Code Article 3076 also governs the interpretation of

compromises and the determination of the scope of a compromise: “A compromise

settles only those differences that the parties clearly intended to settle, including

the necessary consequences of what they express.” Additionally, we apply the

“general principle that the contract must be construed as a whole and in light of the

attending events and circumstances.” Brown, 630 So.2d at 748; see also

La.Civ.Code art. 2050.

Appellants contend that the settlement, taken as a whole, evidences their

intent to only release parties related to the LDAF. Appellants cite Brown, 630

So.2d 741, in support of their arguments. In Brown, the supreme court determined

that the scope of the compromise did not include a future claim for wrongful death

damages against the same defendants that were a party to the settlement agreement.

The supreme court concluded that the compromise only covered what is clearly

contemplated by the document, which was not wrongful death damages, but only

those personal injury claims of the decedent. The wrongful death claim did not

arise until five years after the settlement and was not mentioned in the settlement

document or even thought to be a possibility at the time the settlement was signed.

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The supreme court determined the wrongful death claims were, therefore, not

contemplated in and released by the settlement agreement’s broad language.

On the other hand, Appellees contend that the LDAF Settlement contains

broad language in section four that releases Appellees and that the other provisions

in the settlement do not alter that broad scope of section four’s release. Appellees

rely on Cressy, 212 So.3d 683, in which this Court concluded a products liability

claim against a vehicle’s manufacturer for general and specific damages the

plaintiffs sustained in a car accident was released by the broad language in the

plaintiff’s settlement agreement with the defendant driver and insurer. This Court

expressed that it had no doubt that the plaintiffs did not intend to release the

defendants in the products liability suit. Nevertheless, this Court concluded that

the broad language released all claims against persons and corporations arising out

of the accident. Id. at 692. Judge Cooks authored a dissent and pointed out that

“there is no factual dispute by anyone that there was no intent” to release the

products liability defendants. Cressy, 212 So.3d at 694 (Cooks, J., dissenting).

Additionally, Judge Cooks opined that the majority’s decision led to an absurd and

harsh result, which is in contravention of La.Civ.Code art. 2046.

Accordingly, we must determine if the trial court properly granted summary

judgment, finding that the LDAF Settlement released Appellees. To do so, we

look at the terms of the LDAF Settlement, as well as the “attending events and

circumstances.” Brown, 630 So.2d at 748.

The LDAF Settlement states:

THIS SETTLEMENT AGREEMENT AND
RELEASE is made by and among Mike Strain, in his
capacity as the Commissioner for the Louisiana
Department of Agriculture and Forestry (referred to
herein as the “Commissioner” and the “Department”),

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and Donald Hodge, Jr., individually and in his capacity
as the Executor of the Succession of Donald Hodge, Sr.,
and Rachel Hodge, (collectively referred to herein as the
“Hodges)”[.]

WHEREAS, on March 20, 2013, Donald Hodge,
Jr. and Rachel Hodge filed a Petition for Preliminary and
Permanent Injunction and Damages against Mike Strain
in his capacity as Commissioner for the Louisiana
Department of Agriculture and Forestry in the 14th
Judicial District Court, Parish of Calcasieu, captioned as
Donald Carl Hodge, Jr., individually and as Executor of
the Estate of Donald Carl Hodge, Sr., and Rachel Hodge
v. Mike Strain in his capacity as the Commissioner for
the Louisiana Department of Agriculture and Forestry,
No. 2013-1366 Div. “E” (the “Lawsuit”); and

WHEREAS, the Lawsuit resulted in [a] Judgment
of Dismissal without Prejudice[.]

....

WHEREAS, the parties hereto wish to settle fully
and finally settle all disputes between them related to
and arising from the deer and premises of the Hodge
Farm[], upon the terms and conditions set forth herein[.]

....

3. CONSIDERATION & TERMS
(a) Considering that the exposed animals traced to
the Hodge farm herd cannot be located, the untimely
death of Donald Hodge, Sr., the grave danger CWD
poses to the Louisiana deer population and the parties’
mutual desire to ensure the safety of the Louisiana deer
population, the significant expenses associated with a
sixty-month quarantine, and the expected births of many
more deer subject to the quarantine, the Department
hereby agrees to pay certain limited expenses in
exchange for full, complete and final settlement of all
claims and matters relating to and/or arising from the
subject matter of the Lawsuit.

....

4. RELEASE OF LIABILITY
Donald Hodge, Jr., individually and as Executor
for the Succession of Donald Hodge, Sr., and Rachel
Hodge, further declare that, for and in consideration of

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the Department’s assistance to be provided as described
herein, they DO HEREBY EXPRESLY RELEASE,
ACQUIT, AND FOREVER DISCHARGE the State of
Louisiana, the Commissioner of Agriculture, the
Department of Agriculture and Forestry, as well as its
employees, administrators, agents, officers, assigns,
representatives, assisting state agencies, sub-contractors,
and any and all other parties, whomsoever, from any
and all past, present, and/or future claims, demands,
damages, compensation, medical expenses, wages,
rights, punitive damages, causes of action and rights
of action, whatsoever, which Donald Hodge, Jr.,
individually and as executor for the Succession of
Donald Hodge, Sr., and Rachel Hodge, have and/or
might have and/or to which they are or may be entitled
and/or to which may hereafter accrue to them, known or
unknown, foreseen and unforeseen, under the laws of the
State of Louisiana and any and all other such laws
whatsoever, in anyway relating to or arising out of this
Agreement. This release shall be enforceable to the
fullest extent permitted by the law of the State of
Louisiana.

....

13. ENTIRE AGREEMENT
(a) The parties declare that the terms of this
agreement have been completely read and are fully
understood and voluntarily accepted for the purpose of
making a full and final compromise, adjustment, and
settlement of the present litigation, on account of the
danger posed by Chronic Wasting Disease, and for the
express purpose of precluding forever any further or
additional claims by the Hodges and/or their
representatives, heirs, successors, subsequent purchasers
and/or assigns against the State of Louisiana, the
Commissioner of Agriculture, Dr. Michael “Mike”
Strain, and/or the Department of Agriculture.

....

(a) The parties further agree that the Department
may file any and all necessary pleadings to dismiss with
prejudice any subsequent litigation asserted by the parties
which arises from or relates to the subject matter of this
Agreement.

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(Emphasis added). The language in the LDAF Settlement distinguishes this case

from Cressy because, when considered in its entirety as we are instructed to do by

La.Civ.Code art. 2050, the LDAF Settlement does not release Appellants’ claims

against Appellees. The above provisions set forth that the agreement is between

Appellants and the LDAF, that the agreement is directly related to the petition for

injunctive relief filed against the LDAF for the full and final compromise of that

litigation. Therefore, as a whole, the agreement limits the scope of the release to

the parties to the settlement agreement for the purpose of dismissing Appellants’

suit against the LDAF, in return for the LDAF disposing of the Hodge Farm herd

and lifting of the quarantine.

Additionally, Appellants’ claims against Appellees involve not only

different conduct than the alleged conduct of LDAF, but also different damages

than those sought in the suit against the LDAF. In their suit against the LDAF,

Appellants asserted the LDAF arbitrarily and capriciously maintained the

quarantine on the Hodge Farm, despite receiving information that the infected deer

were not, and had never been, on the Hodge Farm. In that suit, Appellants sought

an injunction against the quarantine, damages for the costs of maintaining the

Hodge Farm, and damages for the continued inability to sell the Hodge Farm. On

the other hand, in their suit against Appellees, Appellants alleged Appellees moved

deer, without permission, from their pins to promote breeding during the

quarantine; removed deer from the Hodge Farm without permission; gave false

statements to the LDAF which impeded the LDAF’s investigation; conspired

against Appellants in order to protect their own interests during the quarantine; and

that Mr. Begnaud has kept deer owned by the Hodge Farm at his Carencro farm

without compensating Appellants for those deer. In the current suit, Appellants

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seek damages for loss of income, costs of maintaining the Hodge Farm, costs of

testing the deer tags, the value of the deer maintained on Mr. Begnaud’s Carencro

farm, the lost value of the deer, intentional infliction of emotional distress, plus

other general damages. We find this case to be distinguishable from Cressy.

Accordingly, based on the language of the LDAF Settlement, as well as the

conduct and relief sought in both petitions, we find that the trial court erred in

granting Appellees’ motions for summary judgment and reverse the trial court’s

judgment.

Assignment of Error Two:

Appellants’ second assignment of error asserts that the trial court should

have considered extrinsic evidence, which was proffered, in its consideration of

whether material issues of fact existed as to the parties’ intent. However, intent is

normally determined from the four corners of the document. Brown, 630 So.2d

741. Although extrinsic evidence is permitted when a dispute arises regarding the

scope of the compromise, such circumstances are limited to situations in which

substantiating evidence exists establishing either “(1) that the releasor was

mistaken as to what he or she was signing . . . or (2) that the releasor did not fully

understand the nature of the rights being released or that the releasor did not intend

to release certain aspects of his or her claim.” Brown, 630 So.2d at 749.

Although the second circumstance exists here, we do not find that

considering parol evidence is necessary in this case because the intent of the parties

to the settlement can be determined from the four corners of the agreement.

“When . . . a contract can be construed from the four corners of the instrument

without looking to extrinsic evidence, the question of contractual interpretation is

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answered as a matter of law and thus summary judgment is appropriate.” Id. at

749-50.

After a review of the record, we find the intent of the parties can be

determined from the language of the LDAF Settlement and attending events and

circumstances, therefore, consideration of extrinsic evidence is not necessary to

determine the parties’ intent. Accordingly, we find no merit to Appellants’ second

assignment of error.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s judgment granting

Appellees’ motion for summary judgment and remand the case for further

proceedings consistent with this judgment. All costs of appeal are assessed to

Appellees: Vigilant Insurance Company, Ken Begnaud, and Jared Oertling.

REVERSED AND REMANDED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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