GLOBAL MKTG. SOLUTIONS

Transcription

1 GLOBAL MKTG. SOLUTIONS v. BLUE MILL FARMS Cite as 153 So.3d 1209 (La.App. 1 Cir. 2014) La same conclusion as the majority. The Act requires an attorney chairman to be appointed within one year. The Act uses the word shall repeatedly. An attorney chairman TTT SHALL be appointed within one year from the date the request for review of the claim was filed If the board has not received notice of the appointment of an attorney chairman within one year TTT then the board SHALL promptly send notice to the partiestttt that the claim has been dismissed The parties SHALL be deemed to have waived the use of the medical review panel. La. R.S. 40: (2)(C) (emphasis added) The legislation is clear, the parties have one year to appoint an attorney chairman. Failure to do so will waive the use of the medical review panel. The board has no choice but to dismiss the claim. Courts have no choice but to conclude that the parties waived the use of the medical review panel. I find this time period to be absolute. Unlike La. R.S. 40: B(1)(b), La. R.S. 40: (2)(C) does not allow a party to petition a court of competent jurisdiction for an order extending the twelve month time period. As mentioned by the majority, any different result would have to come from the Louisiana State Legislature., (La.App. 1 Cir. 9/19/14) GLOBAL MARKETING SOLUTIONS, LLC v. BLUE MILL FARMS, INC., et al. No CA Court of Appeal of Louisiana, First Circuit. Sept. 19, Rehearing Denied Nov. 10, Background: Purchaser of land filed a petition for damages against former mineral lessees of land, alleging that the lessees were negligent and strictly liable for having actual or constructive knowledge that their operations were polluting the land, and alleging violations of Louisiana Civil Code and Louisiana Mineral Code. The 18th Judicial District Court, Parish of West Baton Rouge, Alvin J. Batiste, Jr., J., granted summary judgment for lessees. Purchaser appealed. Holdings: The Court of Appeal, Theriot, J., held that: (1) subsequent purchaser rule was correctly applied; (2) purchaser did not have remediation claims based on Civil Code nor Mineral Code; (3) lessees did not commit a continuing tort; (4) owner did not have right to sue lessees as a third-party beneficiary. Affirmed. 1. Mines and Minerals O81, 121 Subsequent purchaser rule, stating that an owner s right to sue for damage to his property is a personal right held by the person who was the owner at the time the damage was caused, which right is not transferred to a subsequent owner without a clear stipulation that the right has been

2 1210 La. 153 SOUTHERN REPORTER, 3d SERIES transferred, was correctly applied to conclude that there was no right of action for subsequent purchaser of land to sue former mineral lessees of land for alleged environmental damage to the purchased property. See publication Words and Phrases for other judicial constructions and definitions. 2. Mines and Minerals O81, 121 Even assuming state constitution article bestowed real rights and obligations between owners of adjacent immovable property, subsequent purchaser of land never shared that relationship with former mineral lessees of the land, and, therefore, purchaser could not enforce any rights against the lessees under the article, where purchaser and lessees were never neighbors, the mineral leases were executed decades before purchaser purchased the property, and by the time purchaser purchased the property, all of the lessees mineral leases had expired. LSA C.C. art Mines and Minerals O81, 121 Since mineral leases had expired at time purchaser purchased land, purchaser had no real right to sue the former mineral lessees of land for alleged environmental damage to the land, under Mineral Code, where no such right transferred to purchaser upon its purchase of the property, and no such right was assigned to purchaser by any party at any time. LSA R.S. 31: Torts O138 To have a continuing tort, there must be continuous conduct that causes continuing damages. 5. Torts O138 To determine whether a continuing tort exists, the court must look to the operating cause of the injury sued upon and determine whether it is a continuous one giving rise to successive damages, or whether it is discontinuous and terminates, even though the damage persists and may progressively worsen. 6. Mines and Minerals O81, 121 Former mineral lessees had no obligation to remediate land allegedly damaged by their drilling operations, in surface estate owner s continuing tort action against lessees, where the tortious conduct, whatever it may have been, ended when the lessees mineral leases terminated and their drilling operations ceased, which operations ended long before surface estate owner purchased the land. 7. Contracts O187(1) Absent any contractual specification in leases of former mineral lessees, conferring benefit of third-party beneficiary on surface estate owner, owner could not claim a right to sue the lessees as a thirdparty beneficiary. 8. Mines and Minerals O125 Absent an agreement between former mineral lessees and successor surface estate owner, that lessees would rectify contamination to the land allegedly caused by their drilling operations, owner had no right of action against lessees. Donald T. Carmouche, Victor L. Marcello, John H. Carmouche, William R. Coenen, III, Brian T. Carmouche, Ross J. Donnes, D. Adele Owen, Baton Rouge, Louisiana, Richard J. Ward, Jr., Maringouin, Louisiana, for Plaintiff/Appellant Global Marketing Solutions, LLC. Joe B. Norman, Kelly Brechtel Becker, Robert B. McNeal, James E. Lapeze, Kathryn Zainey Gonski, New Orleans, Louisiana for Defendant/Appellee Exxon Mobil Corporation.

3 GLOBAL MKTG. SOLUTIONS v. BLUE MILL FARMS Cite as 153 So.3d 1209 (La.App. 1 Cir. 2014) La Wayne G. Zeringue, Jr., Glenn G. Goodier, New Orleans, Louisiana, for Defendant/Appellee Ashland, Inc. Michael R. Phillips, Louis M. Grossman, Shannon A. Shelton, New Orleans, Louisiana, Leonard L. Kilgore, III, L. Victor Gregoire, Richard D. McConnell, Jr., Baton Rouge, Louisiana, for Defendant/Appellee Chevron U.S.A. Inc. Gary M. Zwain, Joseph E. Bearden, III, Metairie, Louisiana, for Defendants/Appellees Warren Operating Company, Inc., Seal Energy Company and Bayou Choctaw, Inc. David M. Culpepper, New Orleans, Louisiana, for Defendant/Appellee Key Production Company, Inc. Before GUIDRY, THERIOT, and DRAKE, JJ. THERIOT, J. S 3 The plaintiff-appellant, Global Marketing Solutions, LLC ( Global ), seeks reversal of motions for summary judgment granted in favor of the defendants-appellees, Chevron U.S.A. Inc., Exxon Mobil Corporation, Ashland, Inc., Key Production Company, Inc., Warren Operating Company, Seal Energy Company, and Bayou Choctaw, Inc., which dismissed all of Global s claims against the defendants, with prejudice. 1 For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY By act of cash sale recorded in the conveyance records of the Parish of West Baton Rouge on September 12, 2005, Global purchased 144 acres of land located in the Bayou Choctaw Oil and Gas Field from Water Oak Plantation, L.L.C. Global alleges that after purchasing the land, it discovered that the land was contaminated by various forms of toxic waste that had seeped through the soil from drilling operations that had been conducted since 1937 to the present time. At no time did Global possess mineral rights to the land. The mineral rights had been severed years prior by various mineral leases beginning in the 1930s. Through investigation and discovery, Global learned that the defendants were mineral lessees at various points in the land s history and had conducted drilling operations. Global filed a petition for damages against the defendants on March 14, While Global does not cite with specificity in its petition how each defendant polluted the land, Global alleges that all of the defendants S 4 were negligent and strictly liable for having actual or constructive knowledge that their operations were polluting the land and failing to inform Global of the latent pollution prior to Global s purchase of the land. Global further claims the defendants were contractually obligated under the mineral leases to restore the land to its original condition once their drilling operations had ceased, and their actions not only violated their contractual obligations, but also violated the corresponding provisions of the Louisiana Civil Code and Louisiana Mineral Code. 2 The defendants filed various exceptions to the petition. Pertinent to this appeal, the defendants filed peremptory exceptions raising the objections of no right of action and no cause of action, and motions 1. Other defendants, such as Blue Mill Farms, Inc., were dismissed prior to this appeal. There is one remaining defendant in this matter who is not a party to this appeal, as the claims against that defendant are unrelated to the claims against the defendants in this appeal. As such, the trial court designated this judgment as final and appealable pursuant to La. C.C.P. art. 1915(B). 2. La. C.C. art. 667 and La. R.S. 31:22 et seq., respectively.

4 1212 La. 153 SOUTHERN REPORTER, 3d SERIES for summary judgment. On April 1, 2010, the district court denied the defendants exceptions of no right of action and motions for summary judgment. In reaching its ruling, the district court relied on the opinion of this Court found in Marin v. Exxon Mobil Corporation, (La. App. 1 Cir. 9/30/09) (unpublished opinion), stating that the right to recover damages is a property right arising out of the original lease and attaches to the property itself. However, the court also noted that this area of law seems to be recently developing, and has yet to have a consensus opinion on this exact point of law by the [s]upreme [c]ourttttt At that time, the Marin case was under review by the Louisiana Supreme Court. Following the district court s ruling, the defendants applied for supervisory writs of review. This Court denied the writs, allowing the defendants to re-urge their exceptions should the Marin case be reversed by the supreme court. The defendants subsequently applied for supervisory writs to the supreme court. In the interim, Marin was reversed, See Marin v. S 5 Exxon Mobil Corporation, (La.10/19/10), 48 So.3d 234, as was a similar case out of the Fourth Circuit Court of Appeal titled Eagle Pipe and Supply, Inc. v. Amerada Hess Corporation, (La.10/25/11), 79 So.3d 246. The supreme court granted the defendants writs on March 2, 2012, and remanded the case to the district court for reconsideration of its previous ruling in light of the Eagle Pipe decision. The defendants re-urged their motions, and on May 29, 2013, the matter came before the district court on remand. The district court granted the motions for summary judgment in favor of the defendants, dismissing Global s petition, with prejudice. The district court noted that the new judgment was made in light of the Eagle Pipe decision. Global timely filed this devolutive appeal. ASSIGNMENTS OF ERROR Global cites twelve assignments of error: 1. The district court committed error in dismissing the claims of Global based on the subsequent purchaser rule and Eagle Pipe. 2. The district court committed error in finding that all of the claims asserted by Global were personal claims for damages. 3. The district court committed error in failing to find that Global owns a real right to claim restoration of its property. 4. The district court committed error in failing to find that Global has the right to seek remediation as an assignee of the rights of the mineral servitude owners. 5. The district court committed error in failing to find that the defendants committed continuing torts. 6. The district court committed error in failing to find that Global has remediation claims based on La. C.C. art. 667 and La. Mineral Code arts. 11 and The district court committed error in its interpretation of Eagle Pipe. S 6 8. The district court committed error in failing to find that Global was a third party beneficiary of the express and implied stipulations in the mineral leases and certain lease assignments. 9. The district court committed error in failing to find that the defendants owe real remediation obligations to Global. 10. The district court committed error in failing to find that the Louisiana Mineral Code provisions applying

5 GLOBAL MKTG. SOLUTIONS v. BLUE MILL FARMS Cite as 153 So.3d 1209 (La.App. 1 Cir. 2014) La to mineral leases impose real obligations on mineral lessees. 11. The district court committed error in failing to follow the supreme court ruling in Magnolia Coal Terminal v. Phillips Oil Company, 576 So.2d 475 (La.1991). 12. The district court committed error in failing to conduct the analysis ordered by the supreme court in Eagle Pipe. STANDARD OF REVIEW A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. All Crane Rental of Georgia, Inc. v. Vincent, (La. App. 1 Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, (La.11/19/10), 49 So.3d 387. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the movant is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(B)(2). 3 A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. C.C.P. art. 966(F)(1). Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed S 7 admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with La. C.C.P. art. 966(F)(3). Only evidence admitted for purposes of the 3. Louisiana Code of Civil Procedure article 966 was recently amended by 2013 La. Acts No. 391, 1 and 2014 La. Acts No. 187, 1 to provide for submission and objections to motion for summary judgment may be considered by the court in its ruling on the motion. La. C.C.P. art. 966(F)(2). The burden of proof on a motion for summary judgment remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant s burden on the motion does not require him to negate all essential elements of the adverse party s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA C.C.P. art. 966(C)(2). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. La. C.C.P. art. 967(B); Pugh v. St. Tammany Parish School Board, (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 97 (on rehearing), writ denied, (La.11/21/08), 996 So.2d When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be evidence for motions for summary judgment. These procedural amendments to La. C.C.P. art. 966 are not implicated in the issues presented in the present appeal.

6 1214 La. 153 SOUTHERN REPORTER, 3d SERIES rendered against him. La. C.C.P. art. 967(B). S 8 In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035, writ denied, (La.10/31/97), 703 So.2d 29. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Christakis v. Clipper Construction, L.L.C., (La.App. 1 Cir. 4/26/13), 117 So.3d 168, 170. Since the district court was instructed by the supreme court to make a ruling in light of the Eagle Pipe decision, we shall use the same standard to make our own determination on the issues of the instant case. DISCUSSION Interpretation of Eagle Pipe Assignments of error one, seven, and twelve question the district court s application of Eagle Pipe in the present case. Specifically, Global argues that the subsequent purchaser rule was incorrectly applied to conclude that there was no right of action for Global to sue the defendants for the damage to the purchased property. According to Eagle Pipe: The subsequent purchaser rule is a jurisprudential rule which holds that an owner of property has no right or actual interest in recovering from a third party for damage which was inflicted on the property before his purchase, in the absence of an assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted. Eagle Pipe, 79 So.3d at The Louisiana Supreme Court conducted a comprehensive analysis of Louisiana property law principles to define the subsequent purchaser rule and how real and personal rights relate to it. We shall summarize the conclusion of that analysis here. S 9 [A] particular successor is not personally bound, unless he assumes the personal obligations of his transferor with respect to the thing, and he may liberate himself of the real obligation by abandoning the thing. Eagle Pipe, 79 So.3d at 261. In other words, when a person acquires a thing, he does not receive any personal obligations related to the thing unless there is some express assumption of a personal obligation; however, he does assume the real obligations related to the thing upon acquiring it and does not absolve himself of those real obligations until the thing is no longer under his possession or control. Real obligations are correlative of real rights. Eagle Pipe, 79 So.3d at 261. The legal right that a person has against another person to demand the performance of an obligation is a personal right. Id. While a real right can be asserted against the world, a personal right is effective only between the parties involved. Eagle Pipe, 79 So.3d at The defendants were mineral lessees upon the subject property at various times in the property s history. According to civil law, a lease does not convey any real right or title to the property leased, but only a personal right. Eagle Pipe, 79 So.3d at 262. A particular successor does not acquire, without stipulation to that effect, any personal rights that his author has with respect to the thing. Id. Based on these Louisiana civil law precepts, the supreme court concluded: Louisiana courts have held that the indemnity due to the owner of an immovable for the expropriation of a part of that immovable, and damages due to the owner of a thing for its partial destruc-

7 GLOBAL MKTG. SOLUTIONS v. BLUE MILL FARMS Cite as 153 So.3d 1209 (La.App. 1 Cir. 2014) La tion or for an interference with the owner s rights, belong to the person who was owner at the time of the expropriation, destruction, or interference. These are personal rights that are not transferred to a successor by particular title without a stipulation to that effect. Eagle Pipe, 79 So.3d at 262, Fn. 52 (citing La. C.C. art. 1764, Revision Comments 1984 (f)). [1] S 10 We find no ambiguity in the supreme court s language, which states that an owner s right to sue for damage to his property is a personal right and is held by the person who was the owner at the time the damage was caused. This personal right is not transferred to a subsequent owner without a clear stipulation that the right has been transferred. We find the district court reached the same conclusion as we have in its interpretation of Eagle Pipe, and we find no error in its application. Assignments of error one, seven, and twelve are without merit, and we will apply the above interpretation of Eagle Pipe to the remaining assignments of error in the instant case. Global s real right of action against the defendants In assignments of error two, three, four, six, nine, and ten, Global argues that under La. C.C. art. 667 and La. Mineral Code arts. 11 and 134, real rights and real obligations existed between Global and the defendants. According to La. C.C. art. 667, if the work a proprietor makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause preventable damage. [2] Even if we make the assumption that La. C.C. art 667 bestows real rights and obligations between owners of adjacent immovable property, Global never shared that relationship with the defendants. As the article is written, Global and the defendants were never neighbors. The mineral leases were executed decades before Global purchased the property. By the time Global purchased the property in 2005, all of the defendants mineral leases had expired. The defendants never did lease rights to the minerals under the property while Global owned it, which means they never could have been neighbors, even in the broadest sense. Therefore, Global S 11 cannot enforce any rights against the defendants under La. C.C. art While Global insists that this article confers real rights to be enforced against the defendants, Global presents no statute or jurisprudence which supports this interpretation. Article 11 of the Mineral Code 4 confers correlative rights on the land owner and the owner of the mineral right to exercise their rights with reasonable regard for those of the other, and Article states that in violation of a mineral lease, the aggrieved party is entitled to appropriate relief provided by law. Again, these articles contemplate the real rights and obligations that exist between parties who occupy the land contemporaneously with a mineral lease. In Marin, a land owner sued a mineral lessee for damage to the land after the mineral lease had expired. Marin, 48 So.3d at 255. Even though the lease was in effect at the time the plaintiff purchased the property, it had expired by the time the suit was filed, and the plaintiffs were never named as third-party beneficiaries to the lease. Id. The supreme court found that the plaintiff would not have a right to sue the mineral lessee under these circum- 4. La. R.S. 31: La. R.S. 31:134.

8 1216 La. 153 SOUTHERN REPORTER, 3d SERIES stances. Id. This finding in Marin parallels the Eagle Pipe principal that rights and obligations under a mineral lease do not transfer to a third party without assignment. [3] Despite Global s interpretation of La. C.C. art. 667 and La. Mineral Code arts. 11 and 134, which contains no statutory or jurisprudential support, Eagle Pipe clearly states that leases convey personal rights only, and we can find nothing in the Mineral Code or the Civil Code which make mineral leases an exception to this rule. Global, therefore, has no real right to sue the defendants for the damage to the land. No such right transferred S 12 to Global upon its purchase of the property, and no such right was assigned to Global by any party at any time. Assignments of error two, three, four, six, nine, and ten are without merit. Continuing tort [4, 5] Global argues, with assignment of error five, that the actions of the defendants constituted a continuing tort, giving Global the right to sue. To have a continuing tort, there must be continuous conduct that causes continuing damages. See Bustamento v. Tucker, 607 So.2d 532, 543 (La.1992). To determine whether a continuing tort exists, the court must look to the operating cause of the injury sued upon and determine whether it is a continuous one giving rise to successive damages, or whether it is discontinuous and terminates, even though the damage persists and may progressively worsen. Marin, 48 So.3d at 253. In Marin, the plaintiff sued Exxon Mobil Corp. for property damage created by oilfield waste seeping from unlined disposal pits. Id., at 254. Prior to the lawsuit, Exxon closed the pits; however, seepage from the pits continued. Id. The supreme court held that although the contamination was migrating from the pits, the conduct creating the damage had ceased. Simply because the contaminants may have continued to dissolve into, or move with, the groundwater with the passage of time does not turn this into a continuing tort. Id. [6] We find a similar factual scenario in the instant case. Global argues that, while the mineral leases had terminated long before purchasing the property, the contamination allegedly caused by the defendants is a continuous tortuous act since the contamination is still on the property. Based on Marin, we disagree. The tortuous conduct, whatever it may have been, would have ended when the defendants mineral leases terminated and S 13 their drilling operations ceased. Although the damage to the property may continue to exist, its operating cause, the drilling operations, ceased when the mineral leases terminated. Assignment of error five is without merit. Third-party beneficiary In assignment of error number eight, Global argues that it is a third-party beneficiary under the defendants expired mineral leases. No mineral lease relating to or affecting immovable property shall be binding on or affect third persons or third parties unless and until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated. Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347, 352 (1969). [7] While Global claims to be a thirdparty beneficiary of the defendants mineral leases, there is no evidence in the record of any written stipulation pour autri recorded in the Parish of West Baton Rouge that conveys such a right to Global. A contracting party may stipulate a benefit for a third-party beneficiary. Mobil Exploration & Producing U.S. Inc. v. Certain Underwriters Subscribing to Cover Note (A), (La.App. 1

9 GLOBAL MKTG. SOLUTIONS v. BLUE MILL FARMS Cite as 153 So.3d 1209 (La.App. 1 Cir. 2014) La Cir. 11/20/02), 837 So.2d 11, 34, writs denied, (La.4/21/03), 841 So.2d 805, (La.5/16/03), 843 So.2d 1129, (La.5/16/03), 843 So.2d 1129, and (La.5/16/03), 843 So.2d None of the defendants mineral leases contain language conferring a benefit upon a third-party beneficiary, let alone Global. Without any contractual specification, Global cannot claim a right to sue the defendants as a third-party beneficiary. Assignment of error eight is without merit. The Magnolia Coal ruling In assignment of error number eleven, Global cites Magnolia Coal Terminal v. Phillips Oil Company, 576 So.2d 475 (La. 1991) to support its position that a land owner can sue a mineral lessee for damage it caused to S 14 the land years before the sale. Placing itself in the position of the Magnolia plaintiff, Global specifically cites the phrase Magnolia s right to recover damages is a property right arising out of the original lease and attached to the property. Magnolia, 576 So.2d at 483. That phrase was also relied upon by this Court in its initial review of Marin, but that opinion was reversed by the supreme court. In light of Eagle Pipe, we find that Magnolia is distinguishable from the instant case. In Magnolia, the plaintiff obtained an option to purchase land along the Mississippi River for the purpose of constructing a coal terminal. The land was burdened by a mineral lease. During the option period, the plaintiff became aware of oil on the property that had collected due to an unplugged well from the defendant s drilling operation. The defendant met with the plaintiff and agreed to rectify the problems at the site. Magnolia, 576 So.2d at When the cleanup proved too difficult, the defendant abandoned its efforts, leaving the well unplugged and the land contaminated with oil. Magnolia, 576 So.2d at 480. The plaintiff sued for damages and was ultimately successful. [8] The primary difference between Magnolia and the instant case is that in Magnolia, an agreement existed between the plaintiff and the defendant that the defendant would rectify the contamination prior to the plaintiff s purchase of the property. In the instant case, no such agreement exists between Global and the defendants. The contamination in Magnolia started decades before the plaintiff s purchase of the property, and the unplugged well continued to leak at the time of the sale, which, in accordance with our discussion supra, would constitute a continuous tort. In the instant case, the damage allegedly occurred decades before the sale of the land to the S 15 plaintiff, but there is no evidence in the record to show that the damage is continuous. Magnolia does not state that the plaintiff had a real right to sue for the damage to its property caused by the mineral lessee; instead, the Magnolia court uses the term property right, qualifying it as arising out of the original lease and attached to the property. Magnolia, 576 So.2d at 483. Essentially, Magnolia states the plaintiff s right of action was a right derived from ownership of the surface, which was burdened by the mineral lease. Without the mineral lease, the right of action would not exist. This interpretation of Magnolia is consistent with the interpretation of Eagle Pipe, which is that a mineral lease can only convey personal rights and obligations between the parties. Where the parties did share a contractual relationship in Magnolia, and personal rights and obligations derived from it, no such relationship exists between Global and the defendants in the instant case. Assignment of error eleven is without merit.

10 1218 La. 153 SOUTHERN REPORTER, 3d SERIES CONCLUSION We are bound by the supreme court to apply the principals of Eagle Pipe to the instant case. In doing so, we find that Global has no real right of action deriving from ownership of the contaminated property, and neither does Global possess a personal right of action from an assignment. As the drilling operations ended long before Global purchased the property, no continuing tort exists. Eagle Pipe has established the standard by which the subsequent purchaser rule is to be applied; thus, our conclusion must be that Global is a subsequent purchaser of the damaged property with no right of action against the defendants. S 16 DECREE The judgment granting motions for summary judgment in favor of the defendantsappellees, Chevron U.S.A. Inc., Exxon Mobil Corporation, Ashland, Inc., Key Production Company, Inc., Warren Operating Company, Inc., Seal Energy Company, and Bayou Choctaw, Inc., and dismissing Global Marketing Solutions, LLC s petition, with prejudice, is affirmed. All costs of this appeal are assessed to Global Marketing Solutions, LLC. AFFIRMED., (La.App. 1 Cir. 9/19/14) KESSLER FEDERAL CREDIT UNION 1 v. Felix RIVERO. No CA Court of Appeal of Louisiana, First Circuit. Sept. 19, Background: Creditor brought action on an open account against debtor. The City Court of Slidell, St. Tammany Parish, No. 2012C0506, James Lamz, J., awarded summary judgment to creditor. Debtor requested an appeal, which was granted. Holdings: The Court of Appeal, Kuhn, J., held that: (1) ten-day period within which debtor was required to appeal began to run when debtor received notice of judgment mailed by the clerk of court, and (2) answer in which debtor averred that he was the victim of identity theft was insufficient to create a triable issue. Affirmed. 1. Courts O190(4) Ten-day period within which debtor was required to appeal city court s summary judgment in favor of creditor in creditor s action on an open account began to run when debtor received the notice of judgment mailed by the clerk of court, rather than when the notice was mailed, and thus request for appeal that was filed less than ten days after the date debtor alleged he received the notice of judgment was timely; pursuant to statute, the appeal delay commenced upon service of notice. LSA C.C.P. arts. 1913, 4905, By amendment of the petition, the identity of this party was corrected to Keesler Federal Credit Union.

11 12 La. 55 SOUTHERN REPORTER, 3d SERIES relief, as opposed to monetary damages on behalf of individual contractors, neither the claim asserted nor the relief requested require the participation of individual members in the lawsuit ). Nevertheless, even if Appellants satisfy this element, Appellants fail to establish standing because the first prong of the test has not been met. For the foregoing reasons, the trial court s judgment is affirmed. AFFIRMED BAGNERIS, J., Dissents with Reasons. BAGNERIS, J., Dissents with Reasons. S 1 I respectfully dissent from the majority s finding that the organizations in this case have failed to demonstrate a real and actual interest in the suit. The essential function of the peremptory exception of no right of action is to test whether the plaintiff has a real and actual interest in the suit. La. C.C.P. art. 927(A)(6); La.Code of Civ. Proc. Art Its purpose is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. It assumes that the petition states a valid cause of action and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Wirthman Tag Construction Co., L.L.C. v. Hotard, , , pp. 2 3 (La.App. 4 Cir. 12/19/01), 804 So.2d 856, 859. Applying the criteria in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), I find that Plaintiffs do have standing to bring this suit against defendants because (1) they have shown that the members of their organizations could bring a suit because of the harm (present or probable for the future) which would occur to the members; (2) they have shown the purpose for which their organizations were formed and why the claims being asserted relate to the purpose of the organization; and (3) S 2 they have shown that the relief being sought does not require the participation of the individual members. Accordingly, I would reverse the judgment of the trial court., 45,507 (La.App. 2 Cir. 8/18/10) Larry WAGONER, et al., Plaintiffs Appellants v. CHEVRON USA INC., et al., Defendants Appellees. No. 45,507 CA. Court of Appeal of Louisiana, Second Circuit. Aug. 18, Opinion Granting Rehearing Nov. 24, Background: Property owners brought action against prior mineral lessee and its assignees, alleging damage to property from contamination from oil and gas projects. The Sixth Judicial District Court, Tensas Parish, No. 22,506, John D. Crigler, J., granted exceptions of no right of action filed by prior lessee and its assignees and sustained various exceptions of no cause of action. Property owners appealed. The Court of Appeal, Brown, C.J., reversed in part, affirmed in part, and remanded. Holdings: On rehearing, the Court of Appeal, Peatross, J., held that: (1) property owners did not have right to sue prior mineral lessee and its assign-

12 WAGONER v. CHEVRON USA INC. Cite as 55 So.3d 12 (La.App. 2 Cir. 2010) La. 13 ees for pre-acquisition damage to the property; (2) property owners did not have right of action under Mineral Code provisions governing reciprocal relationship between mineral lessee and lessor; (3) prior mineral lessee s failure to remediate leakage from unlined pits did not constitute a continuing wrong for purposes of continuing tort doctrine; (4) property owners other tort claims were prescribed; and (5) property owners did not have cause of action for civil fruits or storage. Affirmed. Brown, C.J., dissented with reasons on rehearing. 1. Appeal and Error O893(1) Both exceptions of no right and no cause of action present questions of law requiring a de novo review by appellate courts. La. C.C.P. art Pleading O The peremptory exception of no right of action is used to show that a plaintiff has no legal right or interest in enforcing the matter asserted, based upon the facts and evidence submitted. La. C.C.P. art Pleading O The burden of proof of establishing the exception of no right of action is on the exceptor. La. C.C.P. art Pleading O The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. 5. Pleading O The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. 6. Pleading O On a peremptory exception of no cause of action, no evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. 7. Pleading O228.17, The peremptory exception of no cause of action is triable on the face of the pleadings, and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. 8. Mines and Minerals O121 Purchasers of surface rights to real property that was subject to oil lease did not have right to sue prior mineral lessee and its assignees for damage that was caused by oil and gas operations that occurred prior to purchasers acquisition of the land; right to sue for property damage conferred by the mineral leases was a personal right which did not pass to the purchasers by virtue of their purchase of land, and there was no express conveyance of that right in the instrument of sale. 9. Vendor and Purchaser O218 The general rule, often referred to as the subsequent purchaser doctrine, is that a purchaser of real property cannot recover from a third party for property damage inflicted prior to the sale; it is the landowner at the time of the alleged dam-

13 14 La. 55 SOUTHERN REPORTER, 3d SERIES ages who has the real and actual interest to assert a claim. See publication Words and Phrases for other judicial constructions and definitions. 10. Mines and Minerals O121 The right to damages conferred by a lease, whether arising under a mineral lease or a predial lease, is a personal right, not a property right; and, as a personal right, it does not pass to the new owners of the land when there is no specific conveyance of that right in the instrument of sale. La. C.C. art Mines and Minerals O121 Mineral Code provisions stating that mineral lessee must reasonably exercise its rights under mineral lease, that an assignee or sublessee acquires rights and powers of the lessee, and that assignor or sublessor is not relieved of its obligations or liabilities under a mineral lease, governed the reciprocal relationship between mineral lessee and lessor, and thus purchasers of surface rights to real property had no general right of action under these provisions against prior mineral lessee and its assignees for pre-acquisition damage caused by oil and gas operations; purchasers were not lessors or parties to the mineral leases, and purchasers were not assigned rights under the leases as thirdparty beneficiaries. LSA-R.S. 31:11, 31:128, 31: Mines and Minerals O62.1, 73.1(6), 121 A mineral lessee may have tort liability if it unreasonably exercises its rights under a mineral lease. LSA-R.S. 31: Limitation of Actions O55(6) In the circumstances of a continuing tort, the nature of the alleged conduct has the dual effect of rendering such conduct tortious and of delaying the commencement of prescription. 14. Limitation of Actions O55(6) To have a continuing tort, there must be continuous conduct that causes continuous damages. 15. Limitation of Actions O55(6) To determine whether a continuing tort exists, the court must look to the operating cause of the injury sued upon and determine whether it is a continuous one giving rise to successive damages, or whether it is discontinuous and terminates, even though the damage persists and may progressively worsen. 16. Limitation of Actions O55(6) A continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act. 17. Mines and Minerals O124 Failure of prior mineral lessee to remediate leakage from unlined pits used in oil and gas operations did not constitute a continuing wrong, and thus purchasers of surface rights to the property did not have a cause of action under a continuing tort theory against the prior lessee and its assignees for pre-acquisition damage to the property; the leakage, rather than the failure to remediate the leakage, was the cause of the damage. 18. Limitation of Actions O55(6) The breach of a duty to right an initial wrong is not considered a continuing wrong that suspends the running of prescription under the continuing tort doctrine. 19. Limitation of Actions O95(7) Purchasers of surface rights to real property that was subject of oil lease knew, or should have known, about damage on their land from oil and gas operations within their first year of owning the property, so as to trigger one-year pres-

14 WAGONER v. CHEVRON USA INC. Cite as 55 So.3d 12 (La.App. 2 Cir. 2010) La. 15 criptive period for their nuisance, trespass, and independent tort claims against prior mineral lessee to recover for pre-acquisition damage caused by oil and gas operations; purchasers were fully aware, when buying the property, that they were only purchasing surface rights and that mineral rights had been retained by previous owners, and public records were available indicating that there had been active oil lease operations for nearly 60 years on the land. La. C.C. arts. 3492, Limitation of Actions O95(1) Knowledge sufficient to start the running of prescription is considered the acquisition of sufficient information, which, if pursued, will lead to the true condition of things. 21. Limitation of Actions O95(1) The 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. 22. Action O3 Mines and Minerals O92.13, 121 Provision of statute governing remediation of oilfield sites, stating that the section does not preclude a landowner from pursuing a judicial remedy or receiving a judicial award for private claims suffered as a result of environmental damage, but also stating that the section is not to be interpreted as creating any cause of action or to impose additional obligations under the Mineral Code or arising out of a mineral lease, is procedural, rather than substantive, and does not create a right of action in favor of landowners. LSA-R.S. 30:29(H). 23. Mines and Minerals O124 The savings or economic benefit realized by original mineral lessee and its assignees in disposing of or storing their waste or byproducts on property owners land, rather than disposing or storing them offsite, did not qualify as a fruit, as required to bring an action for civil fruits or storage, where nothing was produced or derived from the property as a result of the storage or disposal of oilfield waste, and there were no revenues derived from the property by virtue of the storage or disposal of waste. LSA C.C. arts. 486, 551. See publication Words and Phrases for other judicial constructions and definitions. Talbot, Carmouche & Marcello, Gonzales, LA, by William R. Coenen, III, Victor L. Marcello, John S. DuPont, III, Donald T. Carmouche, John H. Carmouche, Brian T. Carmouche, for Appellants. Sturgeon & Boyd by John Sturgeon, Jr., Gore & Loy, Ferriday, LA, by Brent S. Gore, Kean, Miller, Hawthorne, D Armond, McCowan & Jarman, L.L.P., New Orleans, LA, by Michael R. Phillips, Louis Grossman, Kean, Miller, Hawthorne, D Armond, McCowan & Jarman, L.L.P., Baton Rouge, LA, by G. William Jarman, Richard D. McConnell, Jr., Frilot Partridge, New Orleans, LA, by Patrick A. Talley, Jr., for Appellee, Chevron USA, Inc. Cook, Yancey, King & Galloway, Shreveport, LA, by Albert M. Hand, Jr., Jason A. Green, Bradley Murchison, Shreveport, LA, by F. John Reeks, Jr., for Appellees, Devon Energy Production, Merit Energy, Merit Management Partners, Merit Energy Partners III, and Merit Energy Partners D III. Adams, Hoefer, Holwadel & Eldridge, New Orleans, LA, by D. Russell Holwadel, Gregory O. Currier, Claudia P. Santoyo,

15 16 La. 55 SOUTHERN REPORTER, 3d SERIES Ira J. Rosenzweig, Wall, Bullington, & Cook, L.L.C., New Orleans, LA, by Jonathan R. Cook, Jones, Odom, Davis & Politz, L.L.P., Shreveport, LA, by J. Marshall Jones, Jr., for Appellees, Denbury Onshore, Smith Operating & Management, LSJ Exploration, Diamond South Operating, and Oil & Ale LSJ. Jeansonne & Remondet, Lafayette, LA, by John A. Jeansonne, Jr., Donovan J. O Pry, II, Jeansonne & Remondet, by John A. Jeansonne, III, for Appellees, McGowen Working Partners, Sunset Oil & Gas, and Spokane Oil & Gas. Before BROWN, WILLIAMS, and PEATROSS, JJ. BROWN, Chief Judge. S 1 The Wagoner family bought a 193 acre tract in the Lake St. John Oil Field in Concordia Parish in September After the purchase, they discovered that the property had been contaminated and damaged by oil and gas operations. The trial court denied the Wagoners the right to sue the past operators who were responsible for the contamination and damage. The trial court held that this tort/contract action was a personal right and that the owner of real property who sells it after damage has occurred, but without assigning the right to the damages, is the proper person to sue for the damages. The Wagoners have appealed this ruling and other rulings on other exceptions granted by the trial court. We reverse in part and remand. 1. Larry Wagoner, Jean Wagoner, Russell G. Wagoner, Angela C. Wagoner, Roy Wagoner, and Ivie Wagoner. 2. Chevron U.S.A. Inc., Devon Energy Production Company L.P., McGowan Working Partners, Inc., Merit Energy Company, LLC, Merit Management Partners I, L.P., Merit Energy Facts and Procedure This action involves a claim for damages to a 193 acre tract of land located in the Lake St. John Oil and Gas Field in Concordia Parish, Louisiana. Plaintiffs 1 filed suit claiming that their property was contaminated by the oil and gas exploration and production activities of defendants. 2 Operations on the property were begun in 1945 by Chevron pursuant to three mineral leases obtained from the Pasternack family. In June 1999, the Pasternack family sold the property, reserving their mineral interests, in a cash sale to James and Jane Funderburg and David and Dale Steckler. S 2 One month later, the Stecklers sold their interest in the property to the Funderburgs. In 2004, plaintiffs purchased the property from the Funderburgs. None of the transfers of surface interests in plaintiffs chain of title included a specific assignment of the right to sue for property damages. After their purchase, plaintiffs discovered that the subsurface of their property was contaminated with exploration and production waste, in particular, through the use of unlined pits. From 1945 to 1992, Chevron leased and conducted oil and gas operations on the property now owned by plaintiffs. From 1992 through 2002, Pennzoil (now Devon) conducted operations on the property pursuant to a lease assignment from Chevron. From 2002 to 2004, Merit conducted operations on the property pursuant to a lease assignment from Pennzoil. LSJ and Oil & Ale obtained a lease assignment from Merit in 2002 and contracted with Smith to operate on the property from January Partners III, L.P., Merit Energy Partners D III, L.P., Smith Operating & Management Co., Spokane Oil & Gas, LLC, Sunset Oil & Gas, L.L.C., Denbury Onshore LLC, Diamond South Operating, L.L.C., LSJ Exploration, L.L.C., and Oil & Ale LSJ, L.L.C.

16 WAGONER v. CHEVRON USA INC. Cite as 55 So.3d 12 (La.App. 2 Cir. 2010) La. 17 through August Beginning in 2004, McGowan (formerly a defendant, dismissed without prejudice) leased and operated the shallow oil producing horizons beneath the property. The deeper horizons were leased and operated by Denbury after The original mineral leases obtained in 1939 and 1940 by Chevron remain active today. Numerous exceptions were filed by the various defendants, and following a hearing on the exceptions, the trial court dismissed all of plaintiffs claims against Chevron (the original mineral lessee), and Merit and Devon (two of Chevron s assignees). The other defendants, Denbury, LSJ, Oil & Ale, Smith and McGowan, conducted operations on the property S 3 after plaintiffs purchase, and not all of plaintiffs claims were dismissed. The trial court sustained the following exceptions filed or adopted by reference by all defendants: (a) No Right of Action (as to Chevron, Merit and Devon); (b) Vagueness; (c) No Cause of Action for Strict Liability for Nuisance; (d) No Cause of Action for Strict Liability for Garde or Custody; (e) No Cause of Action for Abnormally Dangerous or Ultrahazardous Activity; (f) No Cause of Action for Breach of Contract or Warranty; (g) No Cause of Action for Punitive Damages; (h) No Cause of Action for Civil Fruits; and (i) No Cause of Action for Unjust Enrichment. It is from this judgment that plaintiffs have appealed. Discussion The function of a no right of action exception is to determine whether plaintiffs belong to the class of persons to whom the law grants the cause of action asserted. Badeaux v. Southwest Computer Bureau, Inc., (La.03/17/06), 929 So.2d 1211; Skannal v. Bamburg, 44,820 (La.App.2d Cir.01/27/10), 33 So.3d 227, writ denied, (La.05/28/10), 36 So.3d 254; Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., (La.App. 4th Cir.02/10/10), 47 So.3d 428, reh g granted, (04/21/10). Only a person having a real and actual interest to assert may bring an action. La. C.C.P. art. 681; Skannal, supra. The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendants to anyone under the factual allegations of the petition. Industrial Companies, Inc. v. S 4 Durbin, (La.01/28/03), 837 So.2d 1207; Cleco Corp. v. Johnson, (La.09/18/01), 795 So.2d 302. Both the peremptory exceptions of no right and no cause of action present questions of law requiring a de novo review by appellate courts. La. C.C.P. art. 927; Skannal, supra; Taylor v. Dowling Gosslee & Associates, Inc., 44,654 (La.App.2d Cir.10/07/09), 22 So.3d 246, writ denied, (La.02/05/10), 27 So.3d 299. No Right of Action As to Chevron, Merit & Devon The majority of plaintiffs assignments of error are related to the trial court s no right of action ruling as to Chevron, Merit & Devon. Defendants have likewise devoted the majority of their arguments on appeal to this ruling. The oil leases covering the property date back to the 1940 s and remain in effect today due to production. All mineral rights were retained by the family of the original lessor (Pasternack) in the deed of sale to the Funderburgs. The 2004 deed of sale to plaintiffs from the Funderburgs does not include a specific assignment of the right to sue for property damages that may have occurred prior to their acquisition of the property. Chevron s position, and that of the trial court, is that the owner of the land at the