author: PLANCHARD, Judge.

text:
    RICELAND PETROLEUM COMPANY v. NORTH AMERICAN LAND COMPANY, INC., Stream Family Limited Partnership, et als., and the State Mineral Board of the State of Louisiana.
    No. CA 03-241.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 2004.
    Rehearing Denied April 21, 2004.

      William E. Shaddock, William Boyce Monk, Lake Charles, LA, for Defendant Appellant, State Mineral Board of the State of Louisiana.
    A.J. Gray, III, Lake Charles, LA, Randall Charles Songy, Lafayette, LA, for Defendant-Appellee, North American Land Co., Inc. and Matilda Gray Stream.
    John M. McCollam, New Orleans, LA, for Plaintiff-Appellee, Riceland Petroleum Company.
    Court composed of BILLIE COLOMBARO WOODARD, and JIMMIE C. PETERS, Judges and ARTHUR J. PLANCHARD, Judge Pro Tempore.
   PLANCHARD, Judge.

This matter came before the district court as a concursus filed by Riceland Petroleum Company to determine the ownership of royalties owed under mineral leases affecting land within two conservation units. The ownership of that land is disputed. Under Louisiana law title to property can be decided in a concursus proceeding. The contest in this case is between a group of private parties and the State of Louisiana. The private parties are the North American Land Company, Inc.; Mathilda Gray Stream; Stream Family Limited Partnership; HHS Naked Ownership Trust; SGSL Naked Ownership Trust; WGS Naked Ownership Trust; Harold Stream Investment Trust; Sandra Stream Investment Trust; and Gray Stream Investment Trust. The State of Louisiana appears through the State Mineral Board. In this opinion we will refer to the private parties collectively as North American-Stream, and to the State of Louisiana as the State.

The disputed property is located in Cameron Parish along the shore of the Gulf of Mexico about seven miles east of Sabine Pass, the border between Louisiana and Texas. It is an undeveloped part of the physical environment known as the Chenier Plain. According to the experts, the coast there has enjoyed an irregular but net accretion over the last two centuries, though at declining rates, the decline becoming more rapid since the middle of the 20th century. The disputed property is the accretion. The north boundary of the disputed property is the southern boundary of Township 15 South, Range 14 West (T15S, R14W), Cameron Parish, Louisiana, as laid out in the field survey of Thomas Bilbo, a United States Deputy Surveyor, in 1888 and retraced in 1999 by a survey of Michael P. Mayeux, a Registered Louisiana Surveyor. The south boundary of the disputed property is the seashore of the Gulf of 12Mexico. The focus of the dispute is the several hundred feet of accreted property between fractional Section 23 of the township and the present shoreline of the Gulf.

There is no dispute that North American-Stream is the present owner of platted Sec. 23, T15S, R14W. There can be no dispute that the State owns the seashore (herein sometimes tidelands, sometimes shore lands) south of it. The trial court held that the owner of the several hundred feet of accretion that lies in between is North American-Stream. In effect, the trial court reasoned that because the plat of survey by which the State acquired Section 23 in the year 1850 from the United States showed a meander line along the coast as the southern boundary of the section, the coast necessarily became the ambulatory southern boundary for all time, and the owner of Section 23 will always own to the water’s edge. In so ruling, the trial court held that Louisiana Civil Code Article 500, which provides that there is no right to alluvion or dereliction on the shore of the sea or of lakes, and Louisiana case law which holds that the State owns accretion on the seashore, must give way to controlling federal law as announced in Hughes v. State of Washington, 389 U.S. 290, 88 S.Ct. 438, 19 L.Ed.2d 530 (1967). That case held that coastal boundary questions where accretions had extended the shoreline seaward are resolved by applying the federal common law rule which gives the right to the accretions to the federal grantee.

The State appeals. For reasons which we will now explain, we reverse and render judgment in favor of the State of Louisiana recognizing the State as the owner of the disputed property. We find that Hughes does not apply to this case.

The issues in this case revolve around two ancient conveyances of Section 23. The first conveyance was a grant from the United States to Louisiana by means of the Swamp Lands Acts of Congress of 1849 and 1850. The second was a sale by the 13State to Jabez B. Watkins in the year 1883. The extent of the title passed by these two conveyances are important questions that must be examined to determine the ultimate issue of ownership of the accretion today.

The history of Section 23 began in 1838 when Thomas Bilbo, a United States Surveyor, mapped T15S, R14W, Southwestern Land District (now part of Cameron Parish) on the ground. The 1838 Bilbo Survey was the official United States General Land Office survey which actually created the township and its sections and from which the Official Township Plat was made.

THE SWAMP LANDS ACQUISITION

In 1849 and 1850, Congress adopted the Swamp Lands Acts which granted to Louisiana swamp and overflowed lands for the purpose of aiding in the reclamation of those lands. The Acts required that before title could pass to the State there had to be a survey done under authority of the United States and a selection of lands by the State. The Bilbo Survey of the township related to where our disputed property lies, had already been done in 1838. By that survey the township and section corners were established, and the township and section lines were run, except that the north-south lines on some of the bottom sections were run only to the margin of the Gulf. The contour of the Gulf, relatively straight at this point, was meandered on the survey. From Bilbo’s field notes and sketch came the plat. This plat became the official plat of the survey of the lands on file in the Louisiana State Land Office.

Because of the Gulf this township was a fractional township and Section 23 was a fractional section. According to the Official Township Plat it contained just 38 acres. This was not just the upland, but all the land in the section. It was not called a fractional section but the area given, 38 acres, in comparison with the 640 acres in a regular section, shows that Section 23 was in fact a fractional section. State v. Aucoin, 20 So.2d 136, 206 La. 787 (1944). Along with other sections in the township, fractional Section 23 was selected by the State under the Swamp Lands Act on December 7, 1850. Title became vested in the State at that time. The State Tract Book records, which are the official records reflecting this selection and approval, show in the “remarks” column of acres beside Section 23 the number 38, reflecting the acreage of the section on the Township Plat.

The trial judge decided, and we agree, that according to the Bilbo Survey, Section 23 bordered the Gulf when the section was created. The title conveyed to the State therefore extended to the seashore. Louisiana Civil Code Article 451 defines “seashore” as “the space of land over which the waters of the sea spread in the highest tide during the winter season.”

No one knows whether, between 1838 when the Bilbo survey was done and 1850 when the swamp land that included Section 23 was selected by the State, the shoreline moved in, or out, or not at all. There is in the record no evidence on which a reliable determination can be made of what actually happened in that remote and short twelve year span. There is evidence in the record showing where the shoreline was in 1838 and 1883, and we know where it is now, but no evidence was offered to establish specifically where it was in 1850. On the record before us the best evidence of where the southern boundary of Section 23 was in 1850 is where it was in 1838. All of the evidence makes it appear that Bilbo tried to establish the southern boundary of the township by a meander of the sinuosities of the high water line of the coast. For example, at one place in his field notes he indicated he was at a point where the marsh joined the Gulf of Mexico. For this reason we regard the bottom boundary of Section 23 and the shoreline of the Gulf as coterminous on the Bilbo survey, just as the trial court decided. We accordingly establish the shoreline in 1850 at the time of |Rthe State’s acquisition of Section 23 as being exactly where it appears on the Official Township Plat.

In 1999, Michael P. Mayeux, a Registered Professional Land Surveyor, using Bilbo’s field notes and sketch, retraced and re-monumented this traverse, or meander line on the ground. There is no dispute as to the accuracy of his retracement and re-monumentation. Mayeux retraced Bilbo in accordance with the procedure approved in Aucoin, 20 So.2d 136. He retraced the Bilbo original traverse across the entire township. He reestablished the southeast corner of the township from the original General Land Office field notes of Bilbo on the Gulf coast, and from there he did his retracement and reestablishment of the Bilbo monuments on the ground. Mayeux testified that the 1838 meander line of the shore was not a typical meander line, explaining that Bilbo had established not only section corner posts but also quarter section corners. The field notes of Bilbo’s survey reflecting these intermediate monuments along the meander traverse were followed and re-monumented. The retraced and re-monumented traverse shows where the southern or bottom section line of Section 23 was in 1838 and where it is today.

The trial judge found that the meander line of the Bilbo survey was not there to fix the southern boundary “but simply to reflect the sinuosity of the coastline which continued to be the point of high tide of the Gulf of Mexico.” We agree with the trial judge that when the line was established it was placed as close as possible to the point of high tide of the Gulf in 1838, but we cannot agree that it did not fix the southern boundary. The extent and validity of a federal grant is a question to be resolved by federal law. Borax, Consolidated, Ltd., v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935). What exactly was conveyed to the State is a federal question. Chapman & Dewey Lumber Co. v. St. Francis Levee Dist., 232 U.S. 186, 34 S.Ct. 297, 58 L.Ed. 564 (1914). “[I]t is a familiar rule that where lands are patented according to such a plat, the | finotes, lines, landmarks, and other particulars appearing thereon become as much a part of the patent, and are as much to be considered in determining what it was intended to include, as if they were set forth in the patent.” Id. at 187, 34 S.Ct. at 298. The court in Producers’ Oil Co. v. Hanzen, 238 U.S. 325, 35 S.Ct. 755, 59 L.Ed. 1330 (1915), after citing numerous of its decisions including Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428 (1891), stated the principle that “facts and circumstances may be examined, and if they affirmatively disclose an intention to limit the grant to actual traverse lines, these must be treated as definite boundaries.” It is clear from the circumstances that in 1850 the United States did not intend to convey any property beyond the meander line. This is clear for a number of reasons: the section ended there; the section contained a calculated 38 acres which was paid for; the official plat showed that both the township and the section terminated as shown by where the traverse existed; and the State by virtue of its sovereignty was the recognized owner of the tidelands that lay immediately adjacent to the platted section and township. When it is clear from the circumstances that the government did not intend to convey any property beyond the meander line, the meander line is the boundary. Ritter v. Morton, 513 F.2d 942 (9th Cir.1975), cert. denied, 423 U.S. 947, 96 S.Ct. 362, 46 L.Ed.2d 281. The factual circumstances to be reviewed in determining whether a meander line was intended as the boundary include the precise description of the land contained in the surveyor’s field notes and the official plat. Id. Great weight must be given to the boundary line as revealed in the survey and as shown on the plat. Id. Also, particular attention must be paid to the precise acreage computation in the plat. Id. The case of Lee Wilson & Co. v. United States, 245 U.S. 24, 38 S.Ct. 21, 62 L.Ed. 128 (1917) states this legal proposition:

Where in a survey of the public domain a body of water or lake is found to exist and is meandered, the result of such meander is to exclude the area from the survey and to cause it as thus separated to become subject to the riparian rights of the respective owners abutting on the meander line in accordance with the property laws of the several states.

|7What the State received in the grant was Section 23 as shown on the survey.

North American-Stream relies on Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872 (1890) for the rule that when a water line is the boundary of a governmental subdivision, it always remains the boundary and the accretion becomes part of the subdivision. The facts of that case clearly distinguish it from ours. In that case the land was a subdivision, or lot, inside the township, and the Missouri River was a boundary of that lot. “No provision was made for running the north boundary line of lot 4, but the river formed such north boundary without the running of any line there.” Id., 134 U.S. at 182, 10 S.Ct. at 522. In our present case, there was a surveyed line that formed the south boundary. That line was not merely the boundary of the property conveyed; it was also the boundary of the surveyed section and township.

The same considerations are recognized in Louisiana case law to determine whether a meander line is a boundary. The meander line in this case is more than a simple traverse. It also represents a surveyed section and township line marking the southern boundary of Section 23 and the southern boundary of the township at that point. A section corner or quarter corner that is identified as having been established by an official survey of the United States government must stand as being correctly located, because government surveys cannot be changed in an action at law between individuals. Houston Ice & Brewing Co. v. Murray Oil Co., 149 La. 228, 88 So. 802 (1921). In Aucoin, 20 So.2d 136, the traverse of Lake Long on the official plat of the government survey was recognized by the Surveyor General of Louisiana and the Commissioner of the General Land Office because the State owned Lake Long, a navigable lake, by virtue of her sovereignty. “When lands have been disposed of by the government according to a line appearing on an official plat of a government survey, approved by the Surveyor General, the location of the line shown on the official plat is controlling.” Id. at 154.

|sWe have demonstrated that the southern boundary of Section 23 and the coastline were originally one and the same. Our reference to “originally” means when Section 23 was created. When the State acquired Section 23 it already owned the shorelands by virtue of its sovereignty, having acquired that title in the year of its statehood, 1812, as the beneficiary of the equal footing doctrine. Thus, in 1850 it became the owner of Section 23 as well as the shorelands on which the section bordered. Ownership of what theretofore had been two separately identifiable areas, the platted Section 23 and the seashore, was now vested in one owner, the State of Louisiana.

Under Louisiana law, whether an owner of land bordering on water may acquire additional land or lose what he has, by effect of a change in the location of the shoreline of the water, are matters governed by the Civil Code. Accretion, which the Code calls alluvion, formed successively and imperceptibly on the bank of a river or stream, belongs to the owner of the bank. La. Civ.Code art. 499. However, there is no right to alluvion or dereliction on the shore of the sea or of lakes. La. Civ.Code art. 500. Accretion does not become the property of owners of soil contiguous to the seashore. Zeller v. Southern Yacht Club, 34 La. Ann. 837 (1882). As the trial judge observed, this has been the law of Louisiana since statehood. In fact, it was part of the Digest, or Code, of 1808, four years before Louisiana became a state. Thus, State law does not recognize and never has recognized a private right to accretion on the seashore. Such accretion belongs to the State. Davis Oil Co. v. Citrus Land Co., 576 So.2d 495 (La.1991).

In Oregon ex. rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 376, 97 S.Ct. 582, 590, 50 L.Ed.2d 550 (1977) the court quoted the following principle from its own earlier decision in Wilcox v. Jackson, 38 U.S. (13 Pet.) 498, 517, 10 L.Ed. 264(1839):

|9We hold the true principle to be this, that whenever the question in any Court, state or federal, is, whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States. (Emphasis by the court.)

We hold that when Louisiana acquired Section 23 via the Swamp Lands Acts it acquired a platted section of land with a definite, fixed boundary on the south. Moreover, when title passed to the State in 1850 there is no question that Section 23 was at the same time riparian. Under federal law the right to future accretion is an inherent and essential attribute of the littoral or riparian owner. California v. United States, 457 U.S. 273, 102 S.Ct. 2432, 73 L.Ed.2d 1 (1982). When title to Section 23 passed to the State from the United States, the federal common law riparian right to accretion became vested in the State as an attribute of the property. The State as the upland owner was entitled to the accretion because this was an attribute of title obtained by grant from the Government. United States v. State of Washington, 294 F.2d 830 (9th Cir.1961), cert. denied, 369 U.S. 817, 82 S.Ct. 828, 7 L.Ed.2d 783 (1962). There was, at this time, no conflict between federal laws and Louisiana law with respect to the State’s right to ownership of the accretion. The title to Section 23 had passed and vested according to the laws of the United States and the State was entitled to the accretion.

Applying the quoted principle from Oregon, 429 U.S. 363, 97 S.Ct. 582, when title passed from the United States the property, like all other property in the state, became subject to state legislation. That means that from 1850 on the property became subject to Louisiana’s laws regarding ownership and alienation.

Thus, as to Section 23 the United States disposed of the full measure of its title in the Swamp Lands disposition to the State, and the full measure of its title included the riparian owner’s right to the accretion. No Louisiana legislation could affect the ImUnited States’ power to make that disposition. The State as the grantee of the federal land acquired the right to future accretion, or alluvion. Under Louisiana law, too, the State, by virtue of its sovereign ownership of the seashore, possessed the sole proprietorial right to future allu-vion. Regardless of whether the legal source of the ownership of the accretion was the authority of state law or federal law, the State became the owner of the accretion. The question thus becomes whether in 1883 it sold that accretion to Watkins. This question brings us to the second conveyance under consideration, the patent to Watkins in 1883.

THE STATE TO WATKINS 1883 CONVEYANCE

Act 75 of the 1880 Louisiana legislature was one of a series of acts re-affirming the authority of the Louisiana State Land Office to administer the sale of public lands donated to the State by Congress. In 1883, pursuant to the legislative authorization of Act 75, the State sold 2868 acres of land, which included Section 23, to Jabez B. Watkins. He is North American-Stream’s ancestor in title. According to § 1 of Act 75, the State Land Office was created “for the sale of public lands donated to the State by Congress,’’and §§ 10 and 11 made “the public lands, donated by Congress to the State of Louisiana ... subject to entry and sale.” Section 7 required that the State give the purchaser a receipt “which shall contain a correct de-seription, by section, township and range, of the lands sold by the State.” Pursuant to this authorization, on May 24, 1883, the State conveyed to Watkins 2868 acres out of T15S, R14W, described as parts of seven sections and all of seven more sections, including Section 23. The description of the property conveyed was “according to the official plat of the survey of said lands in the State Land Office,” and “under the provisions of Sec. No. 11, Act No. 75, of 1880.” The specific description of the property conveyed was:

N/2 of NE/4, NW/4 of NW/4 Sec. 1, N/2 of NE/4, NE/4 of NW/4 Sec. 2, SW/4 of SE/4, S/2 of SW/4, Sec. 6, NW/4 of NE/4, N/2 of NW/4, Sec.7, S/2 of S/2 Sec. 14, S/2 of S/2 of Sec. 17, S/2 of S/2 of Sec. 18,
J^CHECK THIS [sic] All of Sec’s. 19,-20,22,21,23,29 and Sec. No 30, Township No.15 S, Range No.14 W., in the Southwestern Land District, containing 2868 acres, according to the official plat of the survey of said lands in the State Land Office.

The patent itself, dated May 24, 1883, erroneously described the acreage as 2860 instead of 2868, but the price at 12-1/2 cents an acre, $358.50, was correctly stated. The receipt issued in compliance with Act 75 correctly stated both the acreage and the price. It is clear that when the State sold Section 23 to Watkins in 1883, it sold portions of the same property, including all of fractional Section 23, that it had acquired from the United States under the Swamp Lands grants in 1849 and 1850. The land was conveyed according to the official Plat of Survey in the State Land Office, which was the government survey by Thomas Bilbo in 1838. In formulating Act 75 of 1880 the State exercised extreme caution in providing that the lands it authorized to be sold were only those received by the State under the Swamp Land Acts of 1849 and 1850. Gulf Oil Corp. v. State Mineral Bd., 317 So.2d 576 (La.1974); John L. Madden, Federal and State Lands in Louisiana, 331 (1973)

The trial court ruling that the seashore of the Gulf of Mexico as it stood at the time of the passing of title to Watkins in 1883 constituted the southern boundary of Section 23 was in reliance on Stamper v. Bienville Parish Police Jury, 153 So.2d 503 (La.App. 2d Cir.1963). The Stamper case was a title dispute over 2.53 acres, the competing claimants both tracing their titles to the United States, one in accordance with a surveyed contour line of the water’s edge of Lake Bisteneau, and the other in accordance with a surveyed traverse, or meander line. The Stamper court held that under the facts of the case the contour line and not the traverse line was the boundary. Relying on this authority the trial court in the instant case ruled that the meander line shown on the Bilbo Survey was not the southern boundary of the township and of |12Section 23, but that the water was, and concluded that the southern boundary of Section 23 in 1883 was the Gulf of Mexico.

Rebanee on Stamper was misplaced. In Stamper there were two surveyed lines and the court was called upon merely to choose which more accurately reflected the intent of the original grant. In our present case there is only one surveyed line and it was put there not only as a meander but also as the boundary of the township and the section. Under Louisiana law to which the property became subject after the Swamp Lands Acts grant, what was conveyed to Watkins was the surveyed Section 23 that had been granted to the State by the United States in 1850.

We repeat that the State in 1850 became the full owner of Section 23 as well as the shore lands on which the section bordered. In the case of Rodrigue v. Ro- drigue, 218 F.3d 432 (5th Cir.2000), cert. denied, 532 U.S. 905, 121 S.Ct. 1227, 149 L.Ed.2d 137 (2001), the court, discussing Louisiana Civil Code provisions regarding Louisiana’s property law, said it well:

In the Civil Law the bundle of rights that together constitutes full ownership of property comprises three separate sub-bundles: (1) usus — the right to use or possess, i.e., hold, occupy, and utilize the property; (2) abusus — the right to abuse or alienate, i.e. the right to transfer, lease, and encumber the property, and (3) fructus — the right to the fruits, i.e., the right to receive and enjoy the earnings, profits, rents, and revenues produced by or derived from the property.

When the ownership of the shore and the land abutting the shore became united in the State, the whole bundle of rights to the shpre and Section 23 became united in one owner. The riparian rights became an element of ownership, part of the fructus, and were united with the bundle of rights that gave the State full ownership of the seashore, Section 23, and all accretion in between.

With full ownership came the element of abusus and the right to alienate the land. La. Civ.Code art. 477. This meant also the right to alienate any part of what it owned there except the seashore which, under Civil Code article 450, is inalienable. |13 The authority to alienate a part of the land means the State could have sold Watkins all of Section 23 or any conceivable portion of it, just as it sold portions of seven other sections in that same patent to Watkins. It was empowered to sell all of Section 23 as it appeared on the plat of survey. Under Louisiana law “all of Section 23” did not include the riparian right of accretion. The State was not empowered by any legislation to sell the accretion between the southern border of the section and the sea. It was empowered to sell only what appeared on the plat of survey. It made this sale not only by specific description, but also in accordance with the limiting authority of the applicable legislation which we have discussed above. When this sale was confected the parties must be presumed to have acted with knowledge of the provisions of Louisiana law dealing with ownership of immovables.

WHO OWNS THE ACCRETION?

It is apparent that our opinion is the State owns the accretion, the disputed property. However, we must deal with Hughes, 389 U.S. 290, 88 S.Ct. 438.

In that case Mrs. Hughes, who owned oceanfront property that had been patented to her predecessor in title by the United States prior to the entry of the State of Washington into the Union, asserted title to the accretions as her federal common law riparian right. The State of Washington claimed the accretions that accumulated after its statehood by authority of its laws which gave accretion (called accretions in federal law) to the state as owner of the tidelands. The United States Supreme Court held that federal law applied and that under federal law, the federal grantee of the uplands had the right to the accumulated accretions. The court justified the employment of federal law because of the special nature of the coastal boundary question: “The rule deals with waters that lap both the lands of the State and the boundaries of the international sea. This relationship, at this particular point of the marginal sea, is too close to the vital interest of the Nation in its own boundaries to 114allow it to be governed by any law but the ‘supreme Law of the Land.’ ” Id., at 293, 88 S.Ct. at 440. This was the principle of federal law that required that state law be displaced.

That principle is not present in this case. When Louisiana, as the federal grantee under the Swamp Lands Acts, acquired the right to the accretion that might attach to Section 23, it was the full owner of not only the tidelands, but also Section 23 and the accretion that might form in between. Its ownership of the federal riparian right was fully implemented. The title passed and vested in the State according to the laws of the United States. Thereafter, the title having passed, the property became subject to state legislation. The State could never sell the seashore because of its inalienability under state law. It could have sold Section 23 or any part of it and it could have sold the accretion or any part of it. We have been cited to no principle of federal law that would deny Mrs. Hughes in Washington or the State of Louisiana the right to divide riparian property and sell a non-riparian portion of it. The State in this case did not sell the accretion. It sold all of Section 23 in accordance with the official plat of survey.

There is enough evidence in this case to demonstrate that by 1883 when the State sold Watkins Section 23, the seaward movement of the shoreline had left the platted section high and dry. The State in its dual capacities as a sovereign and an original patentee of the United States, owned the place where water lapped both its lands and the boundaries of the international sea. The southern boundary of what it sold was no longer a coastal boundary, and this is what distinguishes our case from the application of the federal rule of Hughes.

THE 1912 STATUTE OF REPOSE

We come now to one final issue. The trial judge held that, in any event, Act 62 of 1912 (La. R.S. 9:5661) afforded the state and private parties only six years to 11schallenge patents conveying state lands, and that the State is now precluded from

questioning the patent’s validity. This ruling, too, was error. The 1912 Statute of Repose applies by its terms only to suits to vacate and annul any patent issued by the State. By its enactment the legislature intended to do no more than cure formal defects in patents that were essentially valid, in that they conveyed alienable property. Gulf Oil Corp. v. State Mineral Bd., 317 So.2d 576 (La.1974). In the present case the State does not contend that there is any defect in the title it issued in 1883 to the ancestor in title of North American-Stream. The dispute here is not as to title; the dispute is as to what was conveyed, which is a matter of interpretation of the instrument of conveyance. The State’s assertions would effectuate the patent, not annul it; the State seeks to carry out the mutual intention of the parties as to the description of the area patented. This has been done before without violence to Act 62 of 1912. See, e.g., Carter v. Moore, 258 La. 921, 248 So.2d 813 (1971) and Aucoin, 20 So.2d 136. If the statute applies at all, it applies to prohibit North American-Stream from seeking to now expand its title to include property not described and not intended to be conveyed to its ancestor by means of the 1883 patent.

JUDGMENT

For the foregoing reasons we reverse the trial court’s ruling that the southern boundary of Section 23, Township 15 South, Range 14 West, in Cameron Parish, Louisiana, is the present location of the highest tide of the Gulf of Mexico in the winter season. We reverse the trial court’s finding that North American-Stream are the owners of the property in dispute and all the minerals, as well as its award of all royalties to North American-Stream attributable to Tracts 3A, 3B, and Tract 4 on the unit survey for the PLAN 8 RB SU A.

Judgment is rendered decreeing that North American-Stream’s ownership is defined on the south by the southern boundary of Section 23 in the year 1850, the best ^evidence of which is the 1999 retraced and re-monumented survey by Michael P. Mayeau, Land Surveyor, of the 1838 Thomas Bilbo Survey.

Judgment is rendered decreeing that the State of Louisiana owns the property south of the southern boundary of Section 23, to the extent relevant to these proceedings, which boundary is described as follows:

Legal Description of the 1838 Bilbo Meander Line of the shore of the Gulf of Mexico in Section 23, Township 15 South, Range 14 West

Across the PLAN 8 RB SUA
Established by Office of Conservation’s Order No. 466-R-l
Beginning at the intersection point of the West boundary of PLAN 8 RB SUA established by the Office of Conservation’s Order Number 446-R-l and the South boundary of Section 23, Township 15 South, Range 14 West as established in 1838 by Thomas Bilbo, deputy survey- or. Said point of beginning also being located N 17 06' 10" East a distance of 49.06' from the common point between course numbers 8 and 9 as shown on the plat of survey dated January 14, 2000 prepared by C.H. Fenstermaker & Associates, Inc. attached to said Order Number 446-R-l.
Thence from said point of beginning North 85 30' 40" East along the South boundary of said Section 23 a distance of 1,778.27' to a 1 1/4" galvanized pipe marking the South 1/4 corner of Section •23;
Thence continuing North 85 30' 25" East along the South boundary of said Section 23 a distance of 763.92' to the East boundary of said PLAN 8 RB SUA and the terminus point of that portion of the South boundary of said Section 23 as it crosses the PLAN 8 RB SUA unit. Said terminus point also being located North 01 01' 39" West a distance of 222.60' from the common point between course numbers 20 and 21 shown on the thereto above referenced order.
All bearings are based on the Louisiana Coordinates System of 1983 (93 adj.) South Zone.

It is ordered that Iberia Bank, New Iberia, Louisiana, pay all funds from the escrow account “Riceland Petroleum Company-State Lease 16037 No. 1 Well 117Account,” Account No. 2332000255, less costs of the trial below, to the State of Louisiana.

It is further ordered that Riceland Petroleum Company pay all royalties and other mineral revenues from the Riceland Petroleum Company-State Lease 16037 No. 1 Well which are attributable to Tracts 3A, 3B and 4 of the Compulsory Unit.

It is further ordered that costs of the trial be paid in accordance with the orders of the trial court, and costs on appeal will be paid by North American-Stream.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Robert DAHMES and Victoria Dahmes v. CHAMPAGNE ELEVATORS, INC., Perfection Gear, a Division of Peerless-Winsmith, Inc., Waupaca Elevators, Inc., Kone, Inc., Audubon Insurance Company, et al.
    Nos. 2003-CA-0807, 2003-CA-0983.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2004.

      Patricia S. LeBlanc, Kelly McCarthy Rabalais, LeBlanc Butler, L.L.C., Metair-ie, LA, for Plaintiffs/Appellants.
    James R. Carter, Porteous, Hainkel & Johnson, L.L.P., New Orleans, LA, for Waupaca Elevator Co., Inc. and First Specialty Ins. Co.

      George P. Hebbler, Jr., Pamela B. Gautier, Miranda, Warwick, Milazzo, Giordano & Hebbler, Metairie, LA, for Perfection Gear, Inc., a Subsidiary of Peerless-Wins-mith, Inc.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge Pro Tempore MOON LANDRIEU).
   EDWIN A. LOMBARD, Judge.

In this consolidated appeal, plaintiffs-appellants Robert and Victoria Dahmes and defendant-appellant Waupaca Elevators, Inc. and its insurer, First Speciality Insurance Company, challenge the judgment of the trial court granting the exception to personal jurisdiction filed by defendant-appellee Perfection Gear, A Division of Peerless-Winsmith, Inc. After review of the record and the arguments of the parties in light of the applicable law, we reverse the judgment of the trial court and remand the matter to the trial court for further proceedings.

Pertinent Facts and Procedural History

On March 11, 2001, a residential elevator, installed in the New Orleans home of Robert and Victoria Dahmes in 1988, fell three stories and severely injured Mrs. Dahmes. On January 29, 2002, Mr. And Mrs. Dahmes (“the plaintiffs”) filed this personal injury suit in the Civil District Court for the Parish of Orleans, alleging that accident occurred because several components of the elevator, including the gearbox, failed. The plaintiffs named as defendants with their respective insurance companies: (1) Waupaca Elevator Company (“Waupaca”), manufacturer of the elevator; (2) Perfection Gear, A Division of Peerless-Winsmith, Inc. (“Perfection”), the manufacturer of the gearbox; and (3) | ¡.the local elevator maintenance service company for the plaintiffs’ elevator between August 1991 until March 2001, Champagne Elevators, Inc. (“Champagne”).

On April 26, 2002, Perfection filed a Declinatory Exception of Lack of Personal Jurisdiction, contending that insufficient contacts existed for personal jurisdiction because Perfection had not purposely directed any action towards the State of Louisiana. In support of its exception, Perfection submitted the affidavit of Carl Pietzsch, an employee of the company since 1994, who declared that Perfection is incorporated in and has its principal place of business in North Carolina, that Perfection gearboxes were custom-made and sold exclusively in limited quantities to Waupa-ca and were not available to a nationwide market, and that Perfection did not sell the gear-boxes to any entity in Louisiana, manufacture or design the gear-boxes for any Louisiana market, or have knowledge of any Perfection manufactured component parts being in Louisiana.

In them opposition to Perfection’s exception, the plaintiffs argued that sufficient contacts existed for jurisdictional purposes because Perfection actively participated in the design of the residential elevator with Waupaca and therefore knew or reasonably could have anticipated that the elevator would be sold throughout the United States. In support of this position, the plaintiffs submitted numerous documents evidencing Perfection’s 20-plus year relationship with Waupaca and its active participation in the design of the nationally marketed and sold Waupaca residential elevator.

After a hearing on July 26, 2002, the trial court orally granted Perfections’ exception and on August 7, 2002, issued a partial final judgment which stated that 1 sthe exception was granted “for reasons this day orally assigned” and that the lawsuit against Perfection was dismissed.

The plaintiffs timely-filed a Motion for Reconsideration and New Trial with supporting deposition testimony by Andrew Peterkin, an employee of Applied Industrial Technologies, a distributor for Perfection gearboxes in Louisiana, and Terry Schmoldt, the purchasing agent for Wau-paca between 1986 and 1988. Mr. Peter-kin stated that in the 2 years preceding his deposition he personally placed 5 orders with Perfection for gearboxes. Mr. Schmoldt stated that elevators manufactured by Waupaca were for nationwide distribution and that Waupaca had never indicated to Perfection that the sales of its elevators were geographically limited.

On January 10, 2003, while the plaintiffs’ motion was pending, Waupaca filed a cross-claim and third party demand against Perfection and/or its insurers, alleging that if Waupaca is liable in this matter, then Perfection owes indemnity and/or contribution to Waupaca. On February 10, 2003, trial court denied plaintiffs’ motion and the notice of the signing of the judgment was mailed on February 27, 2003.

The plaintiffs and defendant Waupaca are now before this court appealing the trial court judgment. Accordingly, the issue before the court is whether the State may exercise personal jurisdiction over a nonresident corporate defendant who manufactured and supplied a component part of a product that entered Louisiana through the marketing and distribution practices of the end product manufacturer and purportedly injured a Louisiana resident.

1 Standard of Review

An appellate court shall conduct a de novo review of the legal issue of personal jurisdiction over a nonresident by a Louisiana court. Anderson v. Interamerican Mfg., Inc., 96-1639 (La.App. 4 Cir.4/9/97), 693 So.2d 210, 212.

Applicable Law

The Louisiana long-arm statute provides for the exercise of personal jurisdiction over a nonresident defendant in pertinent part:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the of the following activities performed by the nonresident:
(1) Transacting any business in this state ...
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and the Constitution of the United States.

La.Rev.Stat. 13:3201.

The limits of the Louisiana long-arm statute are co-extensive with the limits of constitutional due process, A & L Energy, Inc. v. Pegasus Group, 00-3255, p. 3 (La.6/29/01), 791 So.2d 1266, 1270, and the sole inquiry into jurisdiction over a nonresident is a one-step analysis of the constitutional due process requirements. Id.; Ruckstuhl, 98-1126, p. 5, 731 So.2d at 885, quoting Petroleum Helicopters, Inc. v. Avco Corp., 513 So.2d 1188 (La.1987).

The due process test requires that in order to subject a nonresident defendant to a personal judgment, the defendant must have certain minimum contacts with the forum state, such that the maintenance of the suit does not |fioffend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); de Reyes v. Marine Mgmt. Consulting, Ltd., 586 So.2d 103, 105 (La.1991). In interpreting the due process clause, the United States Supreme Court has recognized a distinction between two types of personal jurisdiction- — -“general” and “specific.” A state exercises general jurisdiction when the defendant’s contacts with the state are not related to the lawsuit. Specific jurisdiction, on the other hand, is exercised when the suit arises out of or is related to the defendant’s contacts with the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8-9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). The two-part minimum contacts/fairness analysis applies to the assertion of specific as well as general jurisdiction. de Reyes, 586 So.2d at 109.

If a forum seeks to exercise specific jurisdiction over an out-of-state defendant who has not consented to suit there, the requirement of meaningful minimum contacts is satisfied when the defendant has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries arising out of or related to those activities, de Reyes, 586 So.2d at 106. The “minimum contacts” requirement is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Ruckstuhl, 731 So.2d at 885, citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) and Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The nonresident’s “purposeful availment” must be such that the defendant should “reasonably anticipate being haled into court in the forum state.” Ruckstuhl, 7311 So.2d at 885, citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

Discussions

The plaintiffs-appellants contend that sufficient contacts exist for jurisdiction because Perfection actively participated in the design of the Waupaca elevator system and manufactured the gearbox for the specialty product which is marketed throughout the United States and, additionally, because Perfection sells and distributes industrial parts through several local retailers in Louisiana. The defendant-appellant, Waupaca, contends that the affidavit submitted in support of the exception was insufficient and that the trial was incorrect in denying the motion for a new trial or reconsideration.

In response, Perfection argues that the trial court correctly determined that insufficient contacts existed for jurisdiction because it has not purposefully availed itself of the laws of Louisiana by manufacturing and selling its products to Waupaca, that it had no knowledge of Waupaca’s customer base, that it only sold the gearboxes to Waupaca in limited quantities, and that it did not engage in a nationwide advertising or marketing campaign for these boxes or sell these gear boxes to anyone in Louisiana at any time.

A de novo review of the record evidence reveals that Perfection has sufficient minimum contacts with Louisiana and that traditional notions of fair play and substantial justice are not offended by the state court’s exercise of jurisdiction over Perfection. Perfection was integral in the development of the design of Waupaca’s residential elevator and subsequently manufactured and supplied a significant component part of the Waupaca residential elevator, the gearbox. The |7Waupaca residential elevator is a specialty product that has been marketed generally throughout the United States and specifically in the state of Louisiana through several local retailers for a number of years and, accordingly, Perfection specifically availed itself of the benefits of conducting business in Louisiana. Moreover, because it manufactured a significant component part of a nationally marketed residential elevator, Perfection could reasonably anticipate litigation in this forum. Thus, the state court’s exercise of jurisdiction over Perfection is proper under both the Louisiana long-arm statute and constitutional due process and the trial court’s determination to the contrary was erroneous. Because we have determined that sufficient minimum contacts exist for jurisdictional purposes in this case, we need not directly address Waupaca’s argument that the affidavit supporting Perfection’s exception was insufficient or that the trial judge erroneously denied the judge plaintiffs’ motion for a new trial or reconsideration.

CONCLUSION

For the forgoing reasons, the judgment of the trial court is reversed and Perfeetion’s declinatory exception of lack of personal jurisdiction is denied. The case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . The affidavit was not attached to the exception, but was submitted eight days after the exception was filed.

      . At the hearing, counsel for Perfection argued that Perfection merely manufactured a component shipped to a Wisconsin elevator company and that was insufficient under Ruckstuhl v. Owens Corning Fiberglas Corp., 98-1126 (La.4/13/99), 731 So.2d 881, cert denied, Hollingsworth & Vose Co. v. Ruckstuhl, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999), to establish jurisdiction in Louisiana. The trial judge granted the exception without oral reasons, stating only "I agree. I’m going to grant the exception. Get me an order.”

      . The record does not indicate a hearing was held on August 7, 2002.

      . Specifically, Waupaca contends that the affidavit submitted by Perfection was inadequate because the sales manager who executed the affidavit had only been employed by Perfection for eight years and had no personal knowledge of the relationship between Perfection and Waupaca from 1980 until the elevator was shipped to New Orleans in 1988.


author: MOON LANDRIEU, Judge Pro Tempore.

text:
    Stuart H. SMITH v. STATE FARM INSURANCE COMPANIES and State Farm Fire and Casualty Company.
    No. 2003-CA-1580.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2004.

      Michael G. Stag, Smith Stag, L.L.C., New Orleans, LA, for Plaintiffs/Appellants.
    Paul L. Peyronnin, Taylor S. Carroll, Phelps Dunbar LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and MOON LANDRIEU, Judge Pro Tempore).
   MOON LANDRIEU, Judge Pro Tempore.

In this case involving a toxic mold claim, the plaintiffs, Stuart H. Smith, Barry J.' Cooper, Jr., and Judith M. Smith appeal the judgment granting an exception of no cause of action in favor of the defendant, Rimkus Consulting Group, Inc., (“Rim-kus”). For the reasons assigned, we affirm.

Facts and Procedural History

The plaintiffs’ home sustained damage as a result of a hailstorm that moved through the New Orleans area on January 23, 2000. At the time of the damage, the plaintiffs maintained a property damage insurance policy with State Farm Insurance (“State Farm”). The general contractor used for repairs to the property was R.J.R. Construction, Inc. (“R.J.R.”), which subcontracted with Brooks Roofing Company, Inc. (“Brooks”). Roof repairs were made on two separate occasions; however, the roof continued to leak, causing water damage to the interior of the home.

Thereafter, the plaintiffs noticed the growth of mold inside their home and notified State Farm, which retained Rimkus to inspect the property for the presence of mold. On September 25, 2001, Rimkus performed an inspection of the home and took samples for testing. Rimkus reported the test results to State Farm but not directly to the plaintiffs. In March 2002, State Farm notified the plaintiffs that the inspection confirmed the presence of toxic mold.

|aThe plaintiffs filed the present lawsuit against State Farm, Rimkus, Brooks, and other defendants involved in the inspection of the plaintiffs’ home. The allegations made against Rimkus, as stated in the First Amended Petition, are as follows:

11.
Rimkus Consulting Group, Inc. herein at all times had a fiduciary and legal duty to protect plaintiffs property. Rimkus Consulting Group, Inc. breached its duty causing damage to plaintiffs legally protected interests as a result of the following non-exclusive particulars:
1. Failing to adequately assess the level of toxic molds in plaintiffs property;
2. Failing to warn plaintiff of excessive levels of toxic mold on or in plaintiffs property;
3. Falling below the standard of care required of an environmental consulting group.
As a result of the acts and omissions of Rimkus Consulting Group, Inc., and State Farm Insurance, mold contamination was increased and exacerbated. Rimkus Consulting Group, Inc.’s and State Farm Insurance’s fault and breach of contract resulted in plaintiffs exposure to toxic mold above levels considered safe for human beings.

In response to the allegations, Rimkus filed an exception of no cause of action. The trial court granted the exception on June 4, 2003, dismissing Rimkus with prejudice. This appeal was timely filed on June 18, 2003.

On appeal, the plaintiffs contend that the trial court erred in granting the exception of no cause of action where Rimkus: (1) knew of the existence of an imminent health threat and failed to warn of the danger; and (2) assumed the duty to warn of the existence of a danger. The plaintiffs also claim that: (3) the trial court erred in failing to grant the plaintiffs leave to amend the petition to cure the |,^exception of no cause of action, including an amendment that there exists a breach of a duty owed by contract or a stipulation pour autrui.

In the first two assignments of error, the plaintiffs argue that sufficient facts were pled to support a cause of action against Rimkus, specifically, that Rimkus had a legal duty to warn the plaintiffs of the danger. The plaintiffs contend that Rimkus knew or should have known that the plaintiffs were relying on the inspections to determine whether or not an environmental hazard existed in their home. As such, the plaintiffs submit that Rimkus assumed a duty to protect the plaintiffs and, whether Rimkus is considered a contractor or subcontractor, liability arose from the breach of that duty. Dartlone v. Louisiana Power & Light Co., 33, 597 (La.App. 2 Cir. 6/21/00), 763 So.2d 779; Johnson v. Alexander, 419 So.2d 451 (La.1982).

As their third assignment of error, the plaintiffs maintain that the trial court erred by not allowing the petition to be amended in order to state a cause of action based on a stipulation pour autrui. It is argued that discovery against Rimkus has not been completed. Specifically, the plaintiffs state that they have not yet received a copy of the contract that existed between Rimkus and State Farm, and suggest that it is reasonable to aver that the contract provides protection to the plaintiffs as a third-party beneficiary of the contract.

In opposition, Rimkus submits that the trial court properly ruled that Rimkus did not owe a duty to the plaintiffs. Rimkus maintains that the trial court properly ruled that the plaintiffs were not third-party beneficiaries of the contract between State Farm and Rimkus, citing Rivnor Properties v. Herbert O’Donnell, Inc., 92-1103 (La.App. 5 Cir. 1/12/94), 633 So.2d 735.

LRimkus further contends that the trial court properly ruled that the grounds for objection, namely the legal relationship between the parties and the corresponding lack of duty owed by Rimkus to the plaintiffs, could not be removed by allowing the plaintiffs the opportunity to allege more facts. Particularly, Rimkus argues that the plaintiffs have given no indication as to how their petition could be amended to assert a legal duty.

Exception of No Cause of Action

The exception of no cause of action tests the legal sufficiency of the petition, and the court must determine whether the law affords a remedy for the particular harm alleged. MD Care, Inc. v. Angelo, 95-2361 (La.App. 4 Cir. 3/20/96), 672 So.2d 969, 970. Well-pleaded facts are accepted as true. Lewis v. Aluminum Co. of America, 588 So.2d 167, 169 (La.App. 4 Cir.1991). The petition must set forth the ultimate facts upon which a cause of action is based, and conclusions of law or fact are not considered. Butler v. Reeder, 93-764 (La.App. 5 Cir. 3/16/94), 635 So.2d 1206, 1207. No evidence may be admitted to support or controvert the exception. La. C.C.P. art. 931.

After a thorough review of the record, we agree with the trial court that the petition does not state a cause of action against Rimkus. In particular, we find that the petition fails to identify a legal duty owed by Rimkus to the plaintiffs.

The Louisiana Civil Code provides that a contracting party may stipulate a benefit for a third person not a party to the contract. La. C.C. art. 1978. Under Louisiana law, such a contract for the benefit of a third-party is referred to as a stipulation pour autrui and gives the third party beneficiary the right to demand performance from the promisor. Whitney Nat. Bank v. Howard Weil Financial Corp., 93-1568 (La.App. 4 Cir.1/27/94), 631 So.2d 1308, 1310. A stipulation | ¿pour autrui is never presumed. Rather, the intent of the contracting parties to stipulate a benefit in favor of a third-party must be made manifestly clear. Homer Nat. Bank v. Tri-District Development Corp., 534 So.2d 154, 156 (La.App. 3 Cir.1988).

Finally, to establish a stipulation pour autrui, the third-party relationship must form the consideration for a condition of the contract, and the benefit may not be merely incidental to the contract. Concept Design, Inc. v. J.J. Krebs & Sons, Inc., 96-1295 (La.App. 4 Cir. 3/19/97), 692 So.2d 1203, 1205-06. The party demanding performance of an obligation pursuant to a stipulation pour autrui bears the burden of proving the existence of this obligation. La. C.C. arts. 1831.

In the present ease, the defendants argue that a duty arose out of the unique relationship that existed between Rimkus and the plaintiffs due to the fact that Rimkus performed an inspection on the plaintiffs’ home. We do not find, however, that the existence of this relationship created a legal obligation or legal relationship as required to support a stipulation pour autrui.

Having concluded that the plaintiffs were not the beneficiaries of a stipulation pour autrui, we next consider the plaintiffs’ alternative contention that they have a claim for negligence against Rimkus. We find this argument equally without merit. Again, we agree with the trial court that under the facts of the present case, Rimkus owed no duty to the plaintiffs. The fact that Rimkus discovered the presence of mold in the plaintiffs’ home, and did not report it directly to the plaintiffs, does not give rise to a claim for negligence. Rimkus was under no legal duty to warn the plaintiffs of its findings. In contrast to the cases cited by the plaintiffs, Rimkus did not contribute to or cause the damage to the property.

| (¡Finally, we conclude that the trial court did not err in refusing to grant the plaintiffs the opportunity to amend their petition. La. C.C.P. art. 934 provides that a judgment sustaining the peremptory exception shall permit amendment to the petition when the grounds of the objection may be removed by amendment. Doe v. Entergy Services, Inc., 608 So.2d 684, 687 (La.App. 4 Cir.1992).

The right to amend is not absolute. Amendment is not permitted when it would constitute a vain and useless act., Id., citing Whitney Nat. Bank v. Jeffers, 573 So.2d 1262, 1265 (La.App. 4 Cir.1991).

The trial court recognized that this case involves a purely legal conclusion, one that a factual amendment could not cure. We agree. We see no amendment that can be made, that would not constitute a vain and useless act.

For the foregoing reasons, we affirm the decision of the trial court granting the exception of no cause of action in favor of Rimkus.

AFFIRMED.

      . State Farm entered into a settlement agreement with the plaintiffs prior to this appeal.


author: TERRI F. LOVE, Judge.

text:
    June CENANCE v. Lynette TASSIN, Paul Tassin, Dollar Rent a Car Systems, Inc. and Ace Insurance Company.
    No. 2003-CA-1379.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2004.

      Lionel J. Favret, III, Warren A. For-stall, Jr., Rhett M. Powers, New Orleans, LA, for Plaintiff/Appellant.

      Susan G. Guidry, Sandra D. Guidry, Law Offices of Susan G. Guidry, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR.).
   TERRI F. LOVE, Judge.

Plaintiff, June Cenance, filed suit against defendants, Lynette Tassin, Paul Tassin, Dollar Rent A Car Systems, Inc., and Ace Indemnity Insurance Company asserting a vehicle owned and operated by the defendants negligently backed into her ear damaging her vehicle and causing serious bodily injuries. The trial court granted defendants’ motion for summary judgment finding that there was no. genuine issue of material fact and that Dollar Rent A Car Systems and Ace Insurance Company, as a matter of law, are not liable to the plaintiff. Subsequently, this appeal was lodged asserting one assignment of error. For the following reasons we affirm the trial court’s decision.

FACTS AND PROCEDURAL HISTORY

On August 18, 2002, June Cenance (“Ce-nance”) was driving in the Lakeside Shopping Center parking lot when the defendant’s vehicle backed into her car. The vehicle was driven by Paul Tassin (“Tas-sin”) and owned by the rental agency, Dollar Rent A Car Systems (“Dollar”). Ace Indemnity Insurance Company (“Ace”) is alleged to have provided insurance for the Dollar vehicle and Lynette LTassin. Lynette Tassin leased the car from Dollar and allowed Paul Tassin to drive the vehicle. As a result of the accident, Cenance accrued extensive injuries to her person and damage to her ear. She filed suit against the Tassins, Dollar, and Ace alleging negligence.

In Dollar’s motion for summary judgment, Dollar claimed that as lessor they were not obligated by law to provide liability insurance coverage; therefore under the terms of the rental contract they did not provide such. Ace claimed they did not have a duty nor did they provide liability coverage to the lessee, Lynette Tassin, for the term of the .rental. The trial court granted Dollar and Ace’s joint motion for summary judgment. Cenance instituted this appeal against Dollar urging one assignment of error; Dollar had a duty to determine whether a lessee has the requisite liability insurance under Louisiana law. Cenance did not appeal the trial court’s decision to grant Ace’s motion for summary judgment.

Standard of Review

The Louisiana Supreme Court discussed the standard of review of a summary judgment in Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181 and 99-2257 (La.2/29/00), 755 So.2d 226. They found in pertinent part:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the mov-ant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).
Id. at p. 7, 755 So.2d at 230-31.

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubts must be resolved in the opponent’s favor. Willis v. Medders, 00-2507, p. 1 (La.12/08/00), 775 So.2d 1049, 1050. This court reasoned in Coto v. J. Ray McDermott S.A., 99-1866, p. 4 (La.App. 4 Cir. 10/25/00), 772 So.2d 828, 830 that determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.

Based on the foregoing, in the instant case, this Court must conduct a de nov o review to determine whether the trial court committed error in granting defendant’s motion for summary judgment in favor of Dollar.

ANALYSIS

Cenance does not contend Dollar must provide automobile liability insurance as a vehicle owner, but that Dollar has a duty to ascertain whether or not its lessee has automobile liability insurance. Plaintiff argues that Dollar, operating as a vehicle owner, should determine whether the lessee has insurance as required by La. R.S. 32:861. Cenance further argues that Dollar negligently entrusted its vehicle to an uninsured motorist by failing to determine whether or not the lessee had insurance to protect third party motorists.

14Dollar maintains the Louisiana Motor Vehicle Safety Responsibility Law (“LMVSRL”) does not create a cause of action against a rental agency based upon the fact that the lessee was uninsured because a lessor does not have the duty to investigate whether its lessees are properly insured.

Duty to Verify Insurance

It is well entrenched in Louisiana law that the negligence of a lessee in the exclusive physical control of the object of the lease cannot be imputed to the lessor. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

The argument urged by Cenance was addressed by the First Circuit in Washington v. Stephens Leasing, Inc., 540 So.2d 433 (La.App. 1st Cir.1989). In Washington, the First Circuit reasoned the legislature intended the duty to provide insurance was delegable pertaining to rental companies. Throughout the statute, the terms “owner or lessee,” “applicant,” “owner or owner’s lessee” indicate that the duty of obtaining and maintaining liability insurance falls upon the appropriate person in a given situation. Washington, 540 So.2d at 435. Relying on Friday v. Mutz, 483 So.2d 1269 (La.App. 4th Cir.1986), the First Circuit refused to extend a duty to verify that its lessee had insured the vehicle under the provisions of La. R.S. 32:861 et seq.

We held in Friday v. Mutz that the Louisiana’s Compulsory Motor Vehicle Liability Security Law does not provide a basis for civil liability of the owner of an uninsured vehicle to an injured third party. Friday, 483 So.2d at 1271. In Friday, the plaintiff filed suit against the driver and the registered owner, Mutz, of a vehicle involved in an automobile accident. Friday argued as registered owner, | sMutz was required to procure liability insurance and therefore was liable for the minimum amount of insurance required by the law.

We reasoned the LMVSRL establishes penalties against those who do not insure their vehicle, but does not include liability to victims of accidents caused by uninsured vehicles. Had the Legislature intended to create such a liability, we believe it would have been specifically provided for in the statute. Id. at 1271.

In enacting the LMVSRL the legislature, apparently recognizing the unique nature of rental car agencies, specifically stated in La. R.S. 32:1041 that vehicle owners “engaged in the business of renting or leasing motor vehicles” are not required to furnish proof of financial responsibility to satisfy any judgment entered against their lessees. Hearty v. Harris, 574 So.2d 1234, 1242 (La.1991). The legislature did not intend rental agencies to bear the financial responsibility for the negligent actions of a lessee operating the leased vehicle in accordance with the terms of the lease. Id.

In the case sub judice, Dollar is a rental agency that leased a car to Tassin. Tassin did not purchase liability insurance to cover the vehicle. Tassin was involved in an accident causing injury to Cenance. Under La. R.S. 32:1041, Dollar does not have a duty to provide insurance, nor must Dollar verify whether its lessees have insurance. Under the LMVSRL, the lessee has the duty to provide insurance for the leased vehicle, not the lessor. The legislature did not intend rental agencies to bear the financial responsibility for the negligent actions of a lessee operating the leased vehicle in accordance with the terms of the lease. Therefore, we find Dollar did not have a duty to verify whether its lessee had liability insurance.

| Negligent Entrustment

To prove a claim of negligent en-trustment, a plaintiff must show that a lessor had actual or constructive knowl-

edge that the lessee was incompetent or had an apparent disability at the time of the lease. Francis v. Crawford, 31,840 (La.App. 2 Cir. 5/5/99), 732 So.2d 152, 155.

The plaintiff does not allege the lessee was incompetent or had an apparent disability. Cenance claims Dollar was negligent for entrusting their car to a lessee without verifying whether or not the lessee maintained the requisite liability insurance. The Third Circuit discussed this matter in a similar case, Collette v. Ledet, 93-1581 (La.App. 3 Cir. 6/1/94), 640 So.2d 757.

In Collette, a jury found a rental company was negligent for entrusting a lessee with a vehicle who did not have liability insurance. The Third Circuit reversed the jury’s decision reasoning the rental company’s failure to inquire whether the lessee was insured did not constitute a legal cause of the accident. They concluded lack of insurance was not a basis for denial of a rental. Collette v. Ledet, 93-1581, p. 3 (La.App. 3 Cir. 6/1/94), 640 So.2d 757, 760. See, Joseph v. Dickerson, 99-1046, 99-1188 (La.1/19/00), 754 So.2d 912. (Lender cannot be found liable for loaning the car to a competent driver simply for the reason that she knew or should have known that her own liability insurance policy, by its terms, would not cover the driver’s liability for negligently causing injury).

In the case before us, Dollar did not have a duty to provide or investigate whether Tassin had insurance before leasing her the car. We agree with the Third Circuit’s reasoning that failure to inquire whether the lessee was insured did not constitute a legal cause of the accident. We will not extend this duty to a rental car company that is not legislated to provide liability insurance to its lessees. We find 17there is no duty to verify whether the lessee has the requisite liability insurance and Dollar did not negligently entrust the vehicle to Tassin. Therefore, we affirm the trial court’s decision to grant defendant’s motion for summary judgment.

AFFIRMED.


text:
    STATE of Louisiana v. Ernest McCOY.
    No. 2003-K-1948.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2004.
    Eddie J. Jordan, Jr., District Attorney, Michael L. Capdeboscq, Assistant District Attorney, New Orleans, LA, for the State.
    Mark E. Young, Plauche’, Maselli, Landry & Parkerson L.L.P., New Orleans, LA, for the Defendant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge LEON A. CANNIZZARO JR., and MOON LANDRIEU, Judge Pro Tempore).
   MOON LANDRIEU, Judge Pro Tempore.

In its writ application, the State requests a review of the trial court’s ruling that vacated the defendant’s life sentence and imposed a thirty-year sentence. We reverse.

Procedural History

On April 11, 1985, Ernest McCoy was indicted for possession with the intent to distribute heroin. On April 22, 1986, a jury found him guilty as charged. The trial court subsequently sentenced him to life imprisonment. In an unpublished opinion, this court affirmed his conviction and sentence. State v. McCoy, unpub. 87-6169 (La.App. 4 Cir.1987), 512 So.2d 867 (TABLE). The Supreme Court denied writs. State v. McCoy, 515 So.2d 445 (La. 1987). This court later denied his application for post conviction relief wherein he alleged the evidence was insufficient to support his conviction, his sentence was excessive, and his life sentence should be commuted. State v. McCoy, unpub. 89-K-1533 (La.App. 4 Cir.1989).

On June 13, 2003 the defendant filed a pro se motion to amend, modify, reduce, or vacate his life sentence. The trial court appointed counsel, and the defendant filed a supplemental motion on August 13, 2003. On August 20, 2003, | ¡>the trial court granted his motion, vacated his life sentence, and reset the matter for resentencing. On September 29, 2003, the trial court resen-tenced him to serve thirty years at hard labor. The State now comes before this court seeking relief from this ruling. The trial court stayed its ruling pending review by this court.

Amended Sentence

The State contends that the trial court erred in vacating the defendant’s life sentence and imposing a thirty-year sentence. The trial court was precluded from amending the defendant’s sentence at this point. La.C.Cr.P. art. 822 authorizes a trial court to amend a sentence under certain conditions.

La.C.Cr.P. art. 881 provides:

Art. 881. Amendment of sentence
A.Although the sentence imposed is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.
B. (1) After commencement of execution of sentence, in felony cases in which the defendant has been sentenced to imprisonment without hard labor and in misdemeanor cases, the sentencing judge may reduce the sentence or may amend the sentence to place the defendant on supervised probation. Should the court consider any motion amending or changing the sentence imposed, either prior to or after execution of the sentence, the district attorney shall be notified and, if such motion is filed by the defendant, it shall be tried contradictorily with the district attorney, unless the district attorney waives such contradictory hearing.
| a(2) Such motions include but are not limited to motions for a new trial, motions in arrest of judgment, motions for amendment, modification, or reconsideration of sentence, and motions for modification of conditions of probation or termination of probation.
(3) If a sentence is reduced or amended, a copy of the minute entry reflecting the judgment reducing or amending the sentence shall be furnished to the district attorney and the arresting law enforcement agency.
C. If the sentence imposed by the court is consecutive to a sentence imposed in a different criminal proceeding, for purposes of this Article only, commencement of the execution of sentence begins when the defendant is remanded by the sentencing court to the Department of Public Safety and Corrections, to begin serving either the imposed sentence or a prior sentence to which the imposed sentence is consecutive. (Emphasis added.)

In State v. Neville, 95-0547 (La.App. 4 Cir. 5/16/95), 655 So.2d 785, the defendant moved the court to reconsider or modify his sentence approximately 15 months after the sentence was imposed and made executory. This court held the trial court was without authority to consider the motion. This court discussed when a motion for modification of sentence under La. C.Cr.P. art. 822 may be made:

We previously addressed this same issue in State v. Tillman, 638 So.2d 475 (La.App. 4th Cir.1994). In that case, the defendant pled guilty to purse snatching and was sentenced in September 1992 to five years at hard labor with credit for time served. He filed a motion to reconsider his sentence in May 1994, nineteen (19) months following the imposition of his sentence. Noting that the defendant failed to file his motion to reconsider within the thirty days following the imposition of the sentence and that the trial judge failed to give the defendant additional time within which to file the motion at the time of sentencing, we found the trial court had no authority to reconsider Tillman’s sentence.
State v. Neville, 95-0547 at p. 3, 655 So.2d at 787.

This court also found that the motion to reconsider was really a motion to amend the defendant’s sentence, which under La. C.Cr.P. art. 881 must be filed, in |4a case where a defendant is sentenced to serve hard labor, prior to the commencement of execution of the sentence. Because the defendant had already begun serving his sentence, the court was without authority to modify or amend his sentence under either La.C.Cr.P. arts. 822 or 881.

Claim of Illegal Sentence

The defendant maintains that under La. C.Cr.P. art. 882, the trial court has the inherent authority to correct a sentence “at any time” which it deems to be in violation of constitutional guarantees.

La.C.Cr.P. art. 882 states:

Art. 882. Correction of illegal sentence; review of illegal sentence
A. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.
B. A sentence may be reviewed as to its legality on the application of the defendant or of the state:
(1) In an appealable case by appeal; or
(2) In an unappealable case by writs of certiorari and prohibition.
C. Nothing in this Article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus. (Emphasis added.)

In the present case, the defense refers to State v. Martin, 2001-1767 (La.App. 4 Cir. 1/30/02), 809 So.2d 486, and maintains that the court may suspend, reduce or otherwise correct a sentence if it is unconstitutionally excessive. In Martin, the State brought a writ application to review the trial court’s suspended sentence of a mandatory four-year sentence. The State argued that the statute could not be retroactively applied to the defendant’s case to authorize the trial court to suspend his heroin sentence. This court vacated and remanded the matter for resentencing where the minute entry and the transcript did not indicate whether the guilty plea was based on an understanding that the defendant would receive ^probation. Further, the minute entry and transcript did not indicate whether the trial court considered that the sentence was unconstitutionally excessive. The defendant pleaded guilty on August 29, 2001, and this court’s opinion was rendered on January 30, 2002. This court’s opinion did not reflect that the original sentence had become final.

The defense submits that in State v. Fobbs, 99-0073 (La.App. 4 Cir. 11/24/99), 747 So.2d 1232, 1233, this court reviewed the State’s writ application and found that application of the mandatory minimum sentence to that particular defendant was constitutionally excessive. This court held that the constitutional proscription against cruel and unusual punishment must override a legislatively proposed mandatory minimum sentence if the punishment is constitutionally excessive. This court reviewed the sentence on remand from the Louisiana Supreme Court, and the original sentence had not become final.

The defense also notes that in State v. Clark, 391 So.2d 1174 (La.1980), the Louisiana Supreme Court found that the trial court erred by not taking into account the recent amendment of a statute proscribing theft of livestock, which lessened the penalty for the first offense. However, the sentence was reviewed on appeal, and the sentence was not final.

In the cases cited by the defense in the present case, the sentences were reviewed before the sentences had become final.

McCoy received his life sentence in 1986, and he had been serving his sentence for over eighteen years. He moved to amend his sentence in 2003. The trial court could not amend or modify the sentence in 2003 pursuant to La.C.Cr.P. arts. 822 or 881.

|fiNor could he file a valid motion to reconsider his sentence. Pursuant to La. C.Cr.P. art. 881.1, a motion to reconsider sentence must be filed within thirty days of the imposition of sentence unless the trial court at sentencing sets a longer period to file the motion. See State v. Williams, 96-1587 (La.App. 4 Cir. 4/16/97), 693 So.2d 249. McCoy was sentenced in 1986, long before the enactment of La. C.Cr.P. art. 881.1. He cannot now use this article as a vehicle to have the trial court consider an excessive sentence claim.

The defendant based his motion to amend his sentence on the changes to the statutory sentencing scheme implemented by Acts 2001, No. 403, which lessened to a great extent the range of sentences for many crimes, including the one for which the defendant was convicted. The defendant argued that had he been convicted of the same crime today, he would not have received a life sentence. He therefore contended that his sentence is excessive. The trial court agreed and noted it was granting the defendant’s “post conviction” application. In our 1989 writ disposition of this case, this court considered and rejected the defendant’s claim that his sentence is excessive.

Louisiana Risk Review Board

However, the defendant is not without any recourse. La. R.S. 15:574.22 was added by Acts 2001, No. 403, to address situations similar to that of the defendant. This section sets up the Louisiana Risk Review Panel, which is empowered to review legal sentences to determine if a prisoner should be considered for parole or clemency. La. R.S. 15:574.22 provides in pertinent part:

F. The panels shall review, notwithstanding the provisions of R.S. 15:574.12, presentence reports, prison records, medical and psychological records, information and data gathered by the staffs of the Board of Pardons and the Board of Parole, information provided by the 17convicted person, the district attorney, the assistant district attorney, and an y[sic] other information obtained by the boards or the Department of Public Safety and Corrections.
G. The panel shall have the duty to evaluate the risk of danger to society which each person who has been convicted of a crime not defined or enumerated as a crime of violence in R.S. 14:2(13), and who is confined in a prison facility of any kind, may present if released from confinement. However, the panel shall not evaluate the risk of danger to society presented by:
(2) A person convicted of a violation of the Uniform Controlled Dangerous Substances Law except for any of the following:
* * *
(d) A person sentenced to a term of life imprisonment for a violation of the Uniform Controlled Dangerous Substances Law who has served at least twenty years of the term of imprisonment in actual custody. However, the provisions of this Subparagraph shall not apply ... to any person who has been sentenced as a habitual offender under R.S. 15:529.1 where one or more of the crimes for which the person was convicted and sentenced under R.S. 15:529.1 is a crime of violence defined or enumerated in R.S. 14:2(13) as provided for in Paragraph (3) of this Subsection.
(3) A person sentenced as a habitual offender under R.S. 15:529.1 where one or more of the crimes for which the person was convicted and sentenced under R.S. 15:529.1 is a crime of violence defined or enumerated in R.S. 14:2(13).
5Ü * *
I. When a panel has determined by a preponderance of the evidence that a person will not present a risk of danger to society if released from confinement, the panel may recommend that the person be considered for clemency by the Board of Pardons or the panel may recommend that the person be considered for parole by the Board of Parole. The panel may also recommend to the appropriate board such conditions for clemency or parole as it may deem advisable. Any recommendation of the panel shall not be binding on the Board of Pardons or the Board of Parole.

In the present case, although it appears that the defendant may have two prior convictions, one of which was a crime of violence, the State did not file a |smultiple bill. The defendant can petition to be recommended for clemency. However, the trial court is without authority to change his life sentence.

Accordingly, the ruling of the trial court is reversed, the thirty-year amended sentence is vacated, and the original life sentence is reinstated.

WRIT GRANTED; AMENDED SENTENCE VACATED; & ORIGINAL SENTENCE REINSTATED.

      . The minute entry dated October 30, 2003 states:
      THE STATE FILED A MOTION FOR A STAY ORDER. THE COURT GRANTED THE STAY ORDER IN THIS MATTER ON 10/30/03; HOWEVER THE DEFENDATN [SIC] WAS BEING HELD BY THE DEPARTMENT OF CORRECTONS [SIC] WITHOUT A STAY ORDER BEING IN PLACE ON THE ORDER OF THE ADA.
      The defendant's attorney relates that:
      the [trial] court reduced defendant's mandatory life sentence to a sentence of 30 years at hard labor, with credit for time served from date of arrest. Based upon the calculation of Mr. McCoy's credit for time served, it is the understanding of undersigned counsel that Mr. McCoy has been released from the State Penitentiary and has returned to his family.