text:
    David T. ZULLO v. Daniel J. PARADELA, Tina M. Paradela, and Team Vending, Inc.
    No. 10-CA-918.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      Roy M. Bowes & Associates, Joaquin Shepherd, Attorney at Law, New Orleans, LA, for PlaintiffiAppellee — 2nd Appellant.
    Dutel & Tomeny, William J. Dutel, Christine L. Desue, Attorneys at Law, Me-tairie, LA, for Defendant/Appellee.
   CLARENCE E. McMANUS, Judge.

li>On November 15, 2005, plaintiff Daniel T. Zullo filed a Petition for Damages for Breach of Contract and Fraud. He named as defendants Daniel J. Paradela, Tina M. Paradela and Team Vending, Inc. In his petition, Zullo alleged that on September 2, 2004, he entered into a contract with the defendants where he agreed to purchase eight vending machines for $21,750.00. He was guaranteed that each machine would do a minimum of $50.00 weekly, average profits. Defendants would provide the machines, the accounts and the locations, and he would stock the machines and retain the profits. Zullo remitted a check for $21,750.00 which defendants negotiated.

On October 12, 2004, and before Zullo received the machines and accounts, defendants presented a new list of potential accounts, requiring the purchase of an additional 8 machines for an additional price of $20,000.00. This amount was also paid by Zullo.

|aBy the second week of November, 2004, defendants still had not complied with the terms of the contract, and had provided only four machines, which were not any of the machines listed in either sale. Zullo requested a partial refund, but was told that the money had been spent on other obligations. In March of 2005, Zullo again requested a refund, or performance under the contract, however did not receive the same. At the time of the filing of suit, Zullo had received only six functioning machines and one non-functioning machine.

In this suit, Zullo alleges that defendants did not own the machines that they provided to him. He alleges that defendants breached the contract between them by providing only 6 machines, which were not any of those agreed upon in the contract and which were not actually owned by, but only leased to, defendants. He further alleges that defendants converted his $41,750.00 for their own personal use to pay obligations not related to the contracts at issue (for example, a mortgage on property owned by defendants). Zullo alleges that defendants fraudulently induced him to invest in a business agreement that they had no intentions of performing, and that they fraudulently sold to him vending machines that they did not own. He further alleges that the individual defendants perpetrated the fraud for their own personal gain despite the fact that they represented themselves as a corporate entity, that the corporation was undercapitalized and that corporate formalities were not followed, and that the corporation was not in good standing with the Louisiana Secretary of State. Thus, the corporate entity, Team Vending, Inc., was the alter ego of the individual defendants, and they are personally liable.

On April 9, 2009, the trial court rendered judgment in which a finding of fraud was rendered against Team Vending, Inc. and Daniel Paradela only. Damages of $5,000.00 and court costs were awarded. The judgment remained 14open for a determination of costs subject to an offset of the amounts earned by the vending machines that plaintiff had received.

On March 10, 2010, the court awarded attorney fees of $17,750.76, for a total award of $22,750.76. Team Vending, Inc. and Daniel Paradela have appealed from this ruling.

Thereafter, on April 7, 2010, Zullo filed a Judgment Debtor Rule. Thereafter, on June 17, 2010, Paradela filed a Rule to Show Cause, in which he requested that the court find that the award of damages and court costs had been satisfied. The Judgment Debtor rule was not heard. Instead, on July 22, 2010, the trial court rendered judgment on the Rule to Show Cause finding that defendants had satisfied the damages award as well as the award for court costs of $8,760.01, and there remained only the award of attorney fees to be satisfied. An amended judgment was signed on July 27, 2010 to correct a typographical error. Plaintiff Zullo has appealed from this ruling.

Defendant, Daniel J. Paradela, in his appeal to this Court assigns as error the following, that “The Trial Judge erred in awarding Appellee attorneys (sic) fees in its March 10, 2010 Judgment, when the Trial Judge was only empowered by his Judgment of April 9, 2009 to make a determination regarding the award of costs.”

At the conclusion of the April 9, 2009 trial, the court found that a case of fraud had been established against Daniel Pa-radela. Defendants do not allege error in this finding of the trial court.

The party against whom rescission is granted because of fraud is liable for damages and attorney fees. LSA-C.C. art. 1958; Skannal v. Bamburg, 44,820 (La. [App-5 2 Cir. 1/27/10), 33 So.3d 227; Simmons v. Clark, 08-431 (La.App. 5 Cir. 1/27/09), 8 So.3d 102. Accordingly, the trial court had the authority to award attorney fees in this matter.

The April 9, 2009 judgment states that

... court costs are also awarded to the plaintiff ... The matter shall remain open pending submission of evidence pertaining to monies earned ... Upon submission of the earnings from those machines, the Court will supplement its judgment as it pertains to any additional costs which may be due and owing ...

Defendants assert that this language precludes an award of attorney fees, because attorney fees are not a “cost” in a legal proceeding. We disagree with defendant’s contention.

In oral reasons, the court stated that

I therefore order, as it is consistent with the argument of mitigation, first that the actual court costs in this proceeding I’m going to assign to be paid by Mr. Paradela.
As to attorney’s fees, the cost of making copies, the cost of postage and everything else, I’m going to hold that award open and subject to traversal until mitigation ...

This was reduced to writing in the judgment which states that court costs are awarded, and other costs were left open pending evidence of mitigation. We find that costs as set forth in this judgment were plaintiffs costs in litigating the matter, including attorney’s fees.

In its opposition, defendant cites In re Tutorship of Blanque, 98-428 (La.App. 5 Cir. 11/25/98), 722 So.2d 1132, 1133, in which the court said that “It is well settled that attorney fees may not be awarded in the absence of- a valid contractual agreement or explicit statutory. Although the trial court has great discretion in awarding costs, the long standing rule of law is that attorney fees are not included in costs.” That case involved a cause of action in which attorney fees were not provided by law or by contract. The plaintiff requested that attorney’s |fifees be assessed as court costs, in the interest of equity. This is not the situation presented in this matter, where the award of attorney’s fees was sanctioned by LSA-C.C. art. 1958.

We therefore find no error in the trial court’s ruling of March 10, 2010 awarding attorney’s fees to plaintiff.

Plaintiff, David Zullo, in his appeal to this Court alleges that the trial court erred in its judgment of July 22, 2010 (and amended judgment of July 27, 2010) in that it improperly ruled that the amount of profit satisfied the judgment for damages and costs, since the court previously deducted that same amount from the assessment of attorney fees when rendering the March 10, 2010 judgment.

As stated supra, the trial court ruled in its April 9, 2009 judgment that plaintiff was entitled to $5,000.00 in damages.

At the March 10, 2010 hearing, plaintiffs attorney presented evidence to show plaintiff had incurred attorney fees totaling $23,694.75 and costs of $3,481.01 for a total obligation of $27,582.76. The court asked plaintiffs attorney “So, basically, you’re asking that the legal fees which you claim are $27,582.76, okay, that from that amount be deducted the 9,875 (sic)”, to which plaintiffs attorney replied “Yes.” Thereafter the court stated, “Judgment rendered as prayed for. Do the math.” In accordance, the trial court rendered and signed a judgment stating that setting attorney’s fees at $17,750.76 ($27,582.76 minus $9,875.00). The court then added the damage awarded of $5,000.00 previously rendered for a total award of $22,750.76. We note that counsel incorrectly stated the total amount owed as $27,582.76, when it should have been $27,175.76, according to his own testimony. Applying the $9,875.00 credit, that amount of costs and attorney fees to plaintiff should have been stated as $17,300.76, and we amend the March 10, 2010 judgment to reflect this amount.

17At the July 22, 2010 hearing, the court stated that the profits claimed extinguished or satisfied the damages plus costs award. The court then ruled that the damage award of $5,000.00 and costs of $3,760.01 of were satisfied (by the profits received) and that the only amount owed by the defendant was the attorney fee award of March 10, 2010 (which the court had stated at the March 10 hearing as $17,750.76.)

In his appeal, plaintiff asserts that the trial court erred in its July 27, 2010 judgment by giving a second credit for the same profits that it had credited against attorney’s fees in the March, 10, 2010 judgment.

Our review of the record reflects that the trial court did err in its second judgment when it found that the profits received by plaintiff could offset the damage award, since the court had previously applied that same profit amount to offset the award of attorney fees. Furthermore, there was no evidence introduced to show that defendant had paid any amounts toward the March 10, 2010 judgment. We therefore find that the trial court erred in failing to include the damage award of $5,000.00 when rendering judgment on defendant’s rule to show cause.

Recalculating the awards in this case we determine that that award to plaintiff should have been costs and attorney fees in the amount of $17,300.76 and damages of $5,000.00. Accordingly we amend the trial court’s judgment of July 27, 2010 to state that the damages were not satisfied, and to reflect that the remaining amounts owed by defendant are attorney fees in the amount of $17,300.76 and damages of $5,000.00. As amended, we affirm the judgment of July 27, 2010.

|sFor the above discussed reasons, the trial court’s judgment of March 10, 2010 is amended to state that the amount of costs and attorney fees owed is $17,300.76, and as amended, is affirmed. The trial court’s judgment of July 27, 2010 is amended to reflect that the damages award was not satisfied and that remaining amounts owed by defendant are attorney fees and costs in the amount of $17,300.76 and damages of $5,000.00, and as amended, affirmed. Costs of this appeal are assessed to defendants.

JUDGMENT OF MARCH 10, 2010 AMENDED AND, AS AMENDED AFFIRMED;

JUDGMENT OF JULY 27, 2010 AMENDED, AND AS AMENDED, AFFIRMED.

      . Pepsi filed a petition for intervention, alleging that they had leased to defendants some of the machines that were allegedly sold to Zul-lo. The petition for intervention was ultimately dismissed.

      . The return of the purchase price of the machines was not at issue in this case, only damages for fraud, including costs and attorney fees. The exhibits present in this case include a nolo contendré plea in the case of State v. Daniel Paradela, No. 06-3608 (24th Judicial District Court for the Parish of Jefferson). In that guilty plea, Paradela's sentence was deferred and he was placed on 12 months inactive probation, and assessed cost costs and fines, including $26,500 in restitution. The plea form contains language as follows “The $26,500 represents the formal acceptance of the offer presented in the pending civil case, Zullo v. Paradela et al.”

      . This figure disagrees with the testimony at the March 10, 2010 hearing that costs were $3,481.01.

      . We calculated this amount as follows — at the March 10, 2010 hearing, counsel presented evidence to show that was owed fees of $23,694.75 and costs of $3,481.01, for a total of $27,175.76. From this amount we subtracted Zullo’s profits of $9,875.00.


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of D.A.
    No. 10-CA-1040.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, Joseph R. McMahon, Jr., Elizabeth B. Curren, Assistant District Attorneys, Harvey, LA, Sherry Watters, Tilden H. Greenbaum, III, Attorneys at Law, Department of Children and Family Services, Harahan, LA, for Plaintiff/Appellee.
    Timón V. Webre, Attorney at Law, Indigent Defender Board Harvey, LA, for Parents/Appellants.
    Jennifer Leigh Guillot Womble, Attorney at Law, Metairie, LA, for Minor Child/Appellee.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and HILLARY J. CRAIN, Pro Tempore.
   MARION F. EDWARDS, Chief Judge.

|3D.A., the son of A.A. and A.J., an unmarried couple, was adjudicated to be a Child in Need of Care. His father, A.J., appeals the adjudication.

Born in 2005, D.A. resided with his mother until shortly after Hurricane Katrina. D.A. then lived with his father for two months, but was returned to A.A., his mother, after two months. A.J. was arrested in May of 2006 and is presently serving a twelve-year sentence in prison with a release date of May 2, 2018.

The case first came to the attention of the State of Louisiana, Department of Children and Family Services (“DCFS”) in 2007. A.A., who suffers from mental problems, agreed to a safety plan by which R.J., the paternal grandmother, would Uassist with child care. In August of 2009, A.A. completed an affidavit making R.J. a caretaker of D.A., who then began residing with his grandmother. After only two weeks, R.J. was obliged to return the child to his mother due to her own poor health. D.A. remained with his mother until April 2010, when child protection again became involved. A.A. contacted DCFS, stating that she had been diagnosed with bipolar disorder and depression, that she no longer wanted to care for the child, and that she could not provide a safe environment for him.

In April of 2010, pursuant to an affidavit filed by the State of Louisiana, DCFS, an instanter order was issued granting temporary custody of the minor child, D.A., to DCFS. In the supporting affidavit, A.A. stated that she did have relatives willing to help her. However, A.A. refused agency services. D.A. was placed into foster care in the home of his maternal aunt, where he remained at the time of the hearing.

In May 2010, DCFS filed a Petition for Child in Need of Care on behalf of D.A., alleging neglect by the parents. The parents denied the allegations of the petition. In June 2010, A.A. stipulated that D.A. was in need of care under La. Ch.C. art. 647. Adjudication as to A.J. was continued until July, at which time the court found D.A. in need of care as to his father. At that time, it was determined that continued removal from the parents was necessary, although reunification with the mother was the least restrictive appropriate disposition. A.A. continued to refuse services. The court informed the parents that termination of parental rights may be filed upon failure to comply with the case plan and to make significant progress toward achieving the outlined goals. Judicial disposition as to A.J. was continued pending a psychological evaluation. The case plan included assessments of substance abuse and domestic violence problems for both parents.

|aIn July 2010, the adjudication hearing regarding A.J. was held. At the close of the hearing, the court adjudicated D.A. to be a child in need of care as to A.J. based on neglect during the time period in question. After waiving time delays, the court proceeded to disposition, approving a plan of eventual reunification with the mother. The disposition hearing as to A.J. was recessed for a determination of whether services could be provided for him in prison. On August 31, 2010, the court was informed that such services could not be provided. DCFS further announced it would pursue termination of parental rights as to A.J., which plan the court approved. The court continued D.A. in the custody of his present caretaker pending termination proceedings. A.J. appeals the disposition.

At the July hearing, Ms. Kay Evans of DCFS testified that D.A.’s parents had never married. A.A. had an older son who lived with relatives in Texas. A.A. and D.A. also lived in Texas for a while following Hurricane Katrina, then D.A. lived with his father for a couple of months. A.J. was arrested in 2006 and had been incarcerated since then, on a twelve-year prison sentence. He knew of A.A.’s mental problems and the challenges she has had raising her older son. He had not personally made care plans for D.A. after his incarceration, but indicated that A.A. had arranged for his mother, R.J., to take care of the child. R.J. had several health issues relating to being on dialysis several times a week and could no longer care for her grandson. She is also legally blind. R.J. returned the child to A.A., revoking the provisional custody previously granted. It was stipulated that A.J. submitted a care plan which called for R.J. to be the child’s caretaker, but that DCFS had just become aware of this plan. Ms. Evans stated that R.J. was willing to take care of D.A., but DCFS had already placed him in a suitable situation, and the father’s plan was not appropriate or safe for the child.

| r,A.A. testified that A.J. called D.A. whenever D.A. was visiting R.J. but has never provided financial support. R.J.’s testimony was taken by telephone, at which time she stated she was 62 years old, was willing to care for D.A., and was in a position to do so. She then testified that she is on dialysis three days a week, has high blood pressure and diabetes, and has “bleeding behind her eyes” but is not blind. After her treatments, she does not feel ill but comes home and cooks. There are five people presently living in her home, some of whom are small children, but D.A. would have his own room, and R.J. felt that she could “chase after” him. The mother of the other children in her home also lives with her. R.J. thought she was healthy enough to take care of D.A. When she returned D.A. to his mother, she had taken some cold medicine that had made her sick, and she wanted his mother to take the child back and forth to school until she felt better. She did not intend to return him permanently, but she had been hospitalized. However, she did not attempt to have D.A. returned although she felt he was not safe with his mother. The court found R.J. was not able to provide the necessary care and treatment, and D.A. was at substantial risk of harm due to the continuing absence of his father.

After adjudication, DCFS presented its plan for both A.A. and A.J. With regard to A.J., the department determined, among other things, that he had to contribute payments of $25 per month toward the cost of child care, to demonstrate an ability to maintain a safe and clean environment, and to attend a psychological evaluation that includes an assessment of his substance abuse problems. He was to actively participate in a domestic violence program and complete a safety plan in this regard. The court continued the disposition as to A.J. in order to determine what services were available at prison to enable him to comply with the State’s plan.

17At the next hearing in August, DCFS informed the court that, because R.J. was not an appropriate alternative to foster care and because A.J. had eight years remaining on his sentence, it would pursue termination of parental rights as to him. The court approved the plan based on the length of A.J.’s incarceration, finding that imprisonment would affect reunification.

On appeal, A.J. urges that the trial court erred in finding he neglected D.A. He alleges that his absence in and of itself is not neglect and that his plan was reasonable and prevented the child from being at risk.

At the adjudication hearing, the State bears the burden of proving by a preponderance of the evidence that the child is a child in need of care. La. Ch.C. art. 665. It is well-settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the juvenile court. If the juvenile court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

The purpose of Title 6, Child in Need of Care, of the Louisiana Children’s Code is to protect children whose physical or mental health and welfare is substantially at risk of harm by abuse, neglect, or exploitation. La. Ch.C. art. 601. The health, safety, and best interest of the child are the paramount concern. Id.

|sLa. Ch.C. art. 606, in relevant part, states:

A. Allegations that a child is in need of care must assert one or more of the following grounds:
(2) The child is a victim of neglect.
(3) The child is without necessary food, clothing, shelter, medical care, or supervision because of the disappearance or prolonged absence of his parent or when, for any other reason, the child is placed at substantial risk of imminent harm because of the continuing absence of the parent.

“Neglect” means the refusal or unreasonable failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition of the child, as a result of which the child’s physical, mental, or emotional health and safety is substantially threatened or impaired. La. Ch.C. art. 603(16).

There was testimony at the hearing that, although A.J. was aware of A.A.’s mental illnesses and inability to properly care for a child, he returned D.A. to her at some point following Hurricane Katrina. He did not make the arrangements for R.J. to see to or take custody of the child at that time but left all such decisions to A.A. In addition, incarceration arising from a parent’s voluntary criminal act may not alone serve as an excuse to escape the consequences of a failure to support one’s child, if the incarceration is shown to be a result of the parent’s actions.

In H.A.N., we stated that “There is no set rule resolving the question of whether incarceration is justification for nonsupport. Facts and circumstances vary. Each case is decided upon its particular merits.” ... While the courts must recognize that “the potential loss to the parent is grievous, perhaps more so than the loss of personal freedom caused by incarceration,” the child’s interest is paramount over that of the parent in balancing the sometimes competing interests between the rights |9of the parent and a child’s best interest in a termination of parental rights case....

Although the cited cases involve termination of parental rights, the same reasoning must also apply in an adjudication of a child in need of care. The record before us clearly supports a finding that A.J. failed to support D.A. and, under the facts herein, his incarceration was not an excuse for the ongoing failure to support. There was sufficient evidence for the court to find that A.J.’s failure to attempt to make safe plans for DA., as well as his lifelong failure to provide financial support for the child, was neglect.

In addition, under the particular facts of this case, the court could have reasonably found that A.J.’s incarceration constituted a prolonged and continuing absence which placed D.A. at substantial risk of harm because of a lack of necessary supervision. Although after the petition was filed, A.J. eventually proposed his mother as caretaker, her physical condition appears to be such that she has difficulty providing the necessary care and supervision for such a young child. Although her stated willingness to attempt to care for her grandson is commendable, after R.J. was obliged to return D.A. due a temporary medical setback, she took no action in his regard even though she felt he was still in danger with his mother. There is support for a determination that R.J. was not able to supply the necessary care and support for the child.

The State proved by a preponderance of evidence that D.A. was a Child in Need of Care, and the trial court did not err in so finding. For the foregoing reasons, the judgment is affirmed.

AFFIRMED

      . State in the Interest of S.M.W., 00-3277 (La.2/21/2001), 781 So.2d 1223; Interest of C.C. v. E.C.C, 01-1364 (La.App. 3 Cir. 3/20/02), 813 So.2d 576 (citing State in Inter

        est of D.T. v. K.T., 29,796 (La.App. 2 Cir. 6/18/97), 697 So.2d 665).

      . In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47.

      . In re Fleming, 01-1405, p. 7 (La.App. 5 Cir.4/30/02), 817 So.2d 371, 376; In the Interest of H.A.N., 528 So.2d 1079, 1080 (La.App. 5 Cir.1988).

      . State ex rel. J.T.C. and J.A.C., 04-1096 (La. App. 5 Cir. 2/15/05), 895 So.2d 607, 616 (on rehearing), writ denied, 05-0466 (La.4/8/05), 899 So.2d 11, cert. denied, 546 U.S. 890, 126 S.Ct. 187, 163 L.Ed.2d 201 (2005) (citations omitted).


text:
    LOCH LEVEN PROTECTION, LLC v. Christopher P. ADAMS and Chad C. Adams.
    No. 10-CA-1048.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      Stephen D. Marx, Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, LLP, Metairie, LA, for Plaintiff/Appellee.
    Kenneth C. Fonte, Golden & Fonte, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and HILLARY J. CRAIN, Pro Tempore.
   MARION F. EDWARDS, Chief Judge.

12Pefendant/appellant, Christopher P. Adams, appeals a judgment of the district court in favor of plaintiff/appellee, Loch Leven Protection, LLC, and against him, in the amount of $41,768.42, and attorney’s fees in the amount of $2000.

“Loch Leven” is a parcel of property in the State of Mississippi consisting of 8000 acres on the Mississippi River. Loch Le-ven Protection, LLC (“Loch Leven”) is a Louisiana Limited Liability Company, created in 2006 to provide for the maintenance, control, and preservation of the properties within the parcel, as well as of the Levee and Reservoir that protect those properties. The “fee simple” ownership of the properties determines the membership of the Company, and each tract owner must be a member.

Chad Adams and Christopher Adams are co-owners in indivisión of two tracts of land in Loch Leven, Tracts 2-A and 2-B. According to Loch Leven’s Operating Agreement, each year the members vote on an annual assessment based on the budget to maintain the levee and reservoir as prepared by the company manager. The Agreement states that “The total annual Assessments shall be |sallocated to Tracts based upon their percentage of Ownership Interest.” According to Exhibit “D” of the Agreement, the ownership of Tract 2-A represents a 1/14 ownership interest in the company, as does the ownership of Tract 2-B.

In 2008, a budget was voted on and approved, and assessments of $16,792.57 were allocated to both Tracts 2-A and 2-B. The 2009 allocation for each tract was $8,091.63. Thus, the total owed for 2008-09 was $49,768.42 toward which, it was alleged, the Adams paid $8000. Loch Le-ven filed suit for the balance owed, $41,768.42. Eventually, Loch Leven moved for summary judgment, alleging that the Adams jointly own 2/14 of Loch Leven, and sought to hold Christopher and Chad Adams solidarily liable for the entire sum. The lawsuit was stayed as to Chad Adams, who (at some point) filed for bankruptcy. Christopher Adams opposed the motion, urging that, although the membership interest is held in indivisión with Chad, the joint obligation is not indivisible. He urged that he owns only an undivided 1/14 membership interest, and that his share of the annual assessments is limited to 1/14 of the budgeted common expenses.

Following a hearing on the matter, the trial court granted summary judgment in favor of Loch Leven and against Christopher Adams for the entire assessment, plus attorney’s fees. The court orally stated that the obligation was solidary and “a common benefit” for both Chad and Christopher Adams.

On appeal, Christopher Adams urges that the operating agreement contains no provisions imposing solidary liability on the portion of an annual assessment owed by another member. He argues that the agreement does not include any provisions making co-owners of tracts of land solidar-ily obligated with each other for the total portions of assessments allocated to those eo-owned tracts. Christopher Adams additionally contends that the judgment “contravenes” various Louisiana Civil Code articles. He does not contest his ownership in indivisión; Lrather, he urges that such ownership does not translate to a solidary obligation. He argues that the obligation to pay the assessment is divisible under La. C.C. art. 1815: “An obligation is divisible when the object of the performance is susceptible of division. An obligation is indivisible when the object of the performance, because of its nature or because of the intent of the parties, is not susceptible of division.”

The standard for review of a ruling on a summary judgment is de novo. Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits 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). The movant bears the burden of proof. La. C.C.P. art. 966(C)(2). An adverse party to a supported Motion for Summary Judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. art. 967. 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.

In connection with its motion, Loch Le-ven submitted a copy of the company’s Operating Agreement. In the definition section of the Agreement, which was signed by both Chad and Christopher Adams, a tract owner is “the record owner, whether by one or more persons or entities, of fee simple title to a Tract.” The following definitions are also pertinent: “Member” means “any person or entity which shall be an Owner of a Tract;” “Assessment” means “a Tract Owner’s share of the amount required for payment of the Common Expenses Land Individual Assessments;” and “Ownership Interest” means “the percentage interest in the Company owned by each Member as set forth in Exhibit D, represented by a fraction, the numerator of which is the number of Units owned by the Member, and the denominator of which is equal to the total number of Units outstanding.” Exhibit D to the agreement, titled “Units; Ownership Interest” shows each “member,” the tract owned, the number of units owned, and ownership interest in the company. On that document, co-owners Christopher Adams and Chad Adams are shown (jointly and collectively) as a member or members who own Tract 2-A and 2-B; both jointly own 100 units per tract and a 1/14 ownership interest in the company, again, per tract.

Loch Leven also submitted Salvadore C. Piazza’s affidavit. Piazza is the managing member of the company. Piazza attested that Christopher and Chad Adams co-owned 2 units of Loch Leven, Tracts 2-A and 2-B, in indivisión, and confirmed that the assessment for 2008 was $16,792.58 per unit, and for 2009, it was $8,091.63 per unit. Christopher Adams did not submit any opposing documents.

Ownership of the same thing by two or more persons is ownership in indivisión. La. C.C. art. 797. An obligation is solidary for the obligors when each obligor is liable for the whole performance. See, La. C.C. art. 1794. Solidarity of obligation shall not be presumed. A solidary obligation arises from a clear expression of the parties’ intent or from the law. See, La. C.C. art. 1796.

Under C.C. art. 1794, a solidary obligation exists when the obligors: (1) are obliged to the same thing, (2) so that each may be compelled for the whole, and (3) when payment by one exonerates the other from liability toward the creditor. It is | f,the coextensiveness of the obligations for the same debt which creates the solidarity of the obligation.

Although we agree with Christopher Adams that money and the payment thereof is, by its nature, susceptible to division under La. C.C. art. 1815, straight application of that article ignores the obligation as imposed by the Operating Agreement. La. C.C. art. 1815 provides that an object can also be indivisible because the parties so intended. Thus, even where an object by its nature may be rendered in parts, it must be performed as a whole where it is indivisible because of the parties’ intent.

In the present case, the obligations of Christopher and Chad Adams are governed by the Agreement. When a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law and summary judgment is appropriate.

We find it is clear from the evidence that Chad and Christopher Adams own an undivided interest in Tract 2-A and an undivided interest in Tract 2-B; that a single initial capital contribution was made by both for each tract; that both jointly own 100 units of the company per tract; and that both have an ownership interest of 1/14 for each tract. According to the Agreement, liability is not assessed against the members. Article 6.1 of the Agreement provides the assessments are allocated to the Tracts, rather than to the Members. Article 6.5 provides for remedies for past due assessments against the Tract or Owner, again, not against Members.

| -/There is nothing in evidence to indicate that the co-owners intended to be responsible only for their pro-rata portions of the assessments, or of any debts relating to the property. Pursuant to the Agreement, Chad and Christopher Adams both agreed to be liable for the same thing, that is, payment of the assessment against the tracts. The obligation is coextensive. Thus, they are solidarily liable for the sums due.

For the foregoing reasons, we affirm the grant of summary judgment in favor of Loch Leven.

AFFIRMED

      . Turner Indus. Group, L.L.C. v. Kansas City S. Ry. Co., 08-88 (La.App. 5 Cir. 6/19/08), 989 So.2d 155.

      . Cutsinger v. Redfern, 08-2607 (La.5/22/09), 12 So.3d 945 (La.2009) (citing Bellard v. Am. Cent. Ins. Co., 07-1335 (La.4/18/08), 980 So.2d 654).

      . Cutsinger v. Redfern, supra.

      . Berlier v. A.P. Green Indus., Inc., 01-1530 (La.4/3/02), 815 So.2d 39.

        . Sims v. Mulhearn Funeral Home, Inc., 07-0054 (La.5/22/07), 956 So.2d 583. See also, Young v. La. Farm Bureau Cas. Ins. Co., 04-1343 (La.App. 5 Cir. 3/1/05), 900 So.2d 106, writ denied, 05-0833 (La.5/13/05), 902 So.2d 1026; Turner Indus. v. Kansas City S. Ry., supra.


author: STEWART, J. PER CURIAM

text:
    STATE of Louisiana in the Interest of C.M.S., C.M.S., S.L.D., L.S.W. and S.P.W.
    No. 46,472-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.
    Opinion Clarifying on Denial of Rehearing Aug. 4, 2011.

      David R. Loveridge, for Defendant-Appellant T.P.
    James E. Patton, II, Monroe, LA, for Plaintiffs-Appellees C.M.S., C.M.S., S.L.D., L.S.W. and S.P.W.
    Felix J. Bruyninckx, III, for Plaintiff-Appellee State of Louisiana.
    Keesha M. Bordelon, Rayville, LA, for Plaintiff-Appellee State of Louisiana, DOSS, DCFS.
    Dawn H. Mims, Rayville, LA, for Defendant-Appellee H.A.
    David R. Loveridge, for Defendants-Ap-pellees G.S. and R.W.
    Robert W. Orcutt, for Appellee Oneida Child Protective Board.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   STEWART, J.

_JjT.P., the biological father of S.P.W., a female child, appeals a judgment terminating his parental rights. The trial court found that T.P. abandoned S.P.W. by failing to make significant contributions to her care and support for a period of six consecutive months as of the time the petition for termination was filed, and that termination of parental rights was in the child’s best interest. For the reasons explained in this opinion, we affirm.

FACTS

The Louisiana Department of Children and Family Services (“the department”) removed S.P.W., then age three, and her four older siblings from the custody of their mother, H.A., on December 4, 2007, pursuant to an oral instanter order. Removal was necessitated by validated reports of physical abuse of one of the children by the mother’s husband and dependency due to the mother’s drug use. The family had a prior history with the department. The children had previously been placed in the state’s custody by instanter order issued December 1, 2006, because of validated reports of neglect due to drug dependency and abuse. They were returned to the mother’s custody in October 2007. As stated above, less than two months later, the department again removed the children from H.A.’s custody. On December 19, 2007, S.P.W. was placed in foster care with her paternal grandmother, I.P., in Wisconsin where T.P., who has never had custody of the child, also resides.

|2The children were adjudicated in need of care on January 8, 2008. Though case plans were formulated to work toward family reunification, the permanent goal for the children was changed to adoption as reflected in the permanency hearing judgment of May 6, 2008.

The department filed a petition to terminate parental rights on April 23, 2009. Though a date was set, the hearing never took place. The department again filed a petition to terminate parental rights on October 18, 2010. The petition alleged that T.P.’s parental rights should be terminated under La. Ch. C. Art. 1015(4) for abandonment in that he failed to keep the department apprised of his whereabouts, failed to provide significant contributions toward S.P.W.’s care, and failed to maintain significant contact with her. At an answer hearing held on November 19, 2010, T.P., through the attorney appointed to represent the absent fathers, denied the allegations of the termination petition.

The termination hearing took place on January 12, 2011. T.P. was not present for the hearing. Testimony was taken and the entire record, including case plans, was introduced into evidence. Only evidence relating to T.P. will be addressed.

According to Anita Traxler and Tracy Hoggatt, both with the department, T.P. attended one Family Team Conference in May 2007, when S.P.W. and her siblings were in state custody for the first time. When the children were removed from their mother’s custody again in December 2007, the department notified T.P. As documented in the case plan from the Family Team Conference on June 23, 2008, the department | ^representative who brought S.P.W. to her grandmother in Wisconsin on December 19, 2007, visited T.P. and discussed the child’s permanency plans with him. Around that time, T.P. was incarcerated for a parole violation and was soon to be released.

Hoggatt, who supervised the foster care, testified that the department had minimal contact with T.P. Though it attempted to notify him of all hearings and Family Team Conferences, several items mailed to him were returned unclaimed. Hoggatt recalled that the department did contact T.P. in May 2009, at which time he supported adoption of S.P.W. by his mother. T.P.’s case plan allowed him to visit S.P.W. in the home of his mother and under her supervision. Hoggatt testified and the case plans indicate that T.P. had requested and obtained a home study for possible placement of S.P.W. in his home but that the home was not approved.

Hoggatt’s testimony established the T.P. attended by telephone the last Family Team Conference on December 6, 2010, shortly before the termination hearing. She informed the court that arrangements were made through a social worker at a detention center where T.P. was located to have him available for the conference. Hoggatt testified that this was the only conference attended by T.P. since the children had been taken into custody on December 4, 2007, and that he had not attended any of the hearings concerning S.P.W.

T.P.’s case plans beginning with the December 22, 2008, Family Team Conference required him to provide financial assistance to his mother for S.P.W. Hoggatt testified that the department had nothing showing that Rhe ever provided financial support for S.P.W. No support payments were documented to have been paid by T.P. through Support Enforcement Services, and he provided no proof to the department that he provided financial support, gifts, or other items for S.P.W. On cross-examination by T.P.’s counsel, Hog-gatt admitted that other than checking for payments through Support Enforcement Services, she would not know whether T.P. provided any sort of financial support for S.P.W. unless he reported it.

The department introduced a “Stipulation & Judgment of Paternity” from a matter brought by the State of Wisconsin in 2006 on behalf of Louisiana and H.A. against T.P. to establish paternity and child support. The judgment filed in Wisconsin on April 19, 2006, and in Louisiana on May 5, 2006, determined T.P. to be S.P.W.’s father and stated that the issue of child support was to be held open due to T.P.’s incarceration. It ordered him to report to the Brown County Child Support Agency within seven days of his release from incarceration. Hoggatt testified that any support payments collected by Wisconsin should have come to Louisiana, but there was no evidence that Louisiana had received support payments.

Finally, Hoggatt testified that its Wisconsin counterpart makes monthly visits to check on S.P.W. and provides quarterly reports to the department. Based on these reports, the department had no concerns about recommending S.P.W. for adoption by her paternal grandmother, who had become a certified foster/adoptive parent.

On February 3, 2011, the trial court rendered a judgment terminating T.P.’s parental rights. The judgment also terminated the rights of the | smother, H.A., as to each of the children, and those of the other biological fathers. In its written reasons for its judgment, the trial court found that the department did not prove the grounds for abandonment by T.P. under either La. Ch. C. art. 1015(4)(a) or (c). It found that the department learned of T.P.’s whereabouts within four months of the hearing date as evidenced by the fact that he participated by telephone in the last Family Team Conference held on December 6, 2010. The trial also found that the evidence showed that T.P. periodically exercised supervised visitation with S.P.W. in his mother’s home. However, the trial court did find that the department proved, under La. Ch. C. art. 1015(4)(b), that T.P. abandoned S.P.W. by failing to provide significant contributions to her care and support. Furthermore, the trial court found termination of T.P.’s parental rights to be in S.P.W.’s best interest so that she can be free for adoption.

T.P.’s appeal followed. In two assignments of error, he argues that the department failed to prove by clear and convincing evidence that he did not provide significant contributions to S.P.W.’s care and support or that termination of parental rights was in the child’s best interest.

DISCUSSION

The best interest of the child is the primary concern of the courts and the state in proceedings for the termination of parental rights. State ex rel. A.T., 06-0501 (La.7/6/06), 936 So.2d 79. To terminate parental rights, the state must meet the onerous burden of proving one of the statutory grounds for termination set forth in La. Ch. C. art. 1015 by clear and convincing evidence. La. Ch. C. art. 1035(A); State ex rel. B.H. v. A.H., 42,864 (La. |App.2d6 Cir.10/24/07), 968 So.2d 881. Proof by clear and convincing evidence requires a showing that the existence of the disputed fact is highly probable, meaning more probable than its nonexistence. State in Interest of K.D., 586 So.2d 692 (La.App. 2d Cir.1991). Once a ground for termination is established, the trial court judge may terminate parental rights if termination is in the best interest of the child. La. Ch. C. art. 1037(B); State ex rel. B.H. v. A.H., supra.

In a termination proceeding, the appellate court will not set aside the trial court’s findings of fact in the absence of manifest error. State ex rel. B.H. v. A.H., supra; State in the Interest of M.H., R.H., Jr., and K.H. v. K.W.H., 40,332 (La.App.2d Cir.9/23/05), 912 So.2d 88.

The trial court found that the department proved the ground for termination under La. Ch. C. art. 1015(4)(b), which states:

(4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.

T.P. argues that the department did not produce affirmative evidence that he failed to provide support. He asserts that the evidence merely established that the caseworker had no knowledge of any support provided by him. He points out that his case plan required him to provide financial support to his mother for S.P.W.’s care and that it did not require him to provide this support through the department. He also argues that visitation |7with his child should be considered a “significant non-financial contribution” to her care and support, because the visits allow the grandmother some time to rest. We find no merit to these arguments.

In the 2006 proceedmg brought by Wisconsin on behalf of Louisiana and H.A., T.P. stipulated to paternity. Because he was incarcerated, the issue of child support was held open, and he was ordered to report to the Brown County Child Support Agency within seven days of his release. The stipulation and judgment entered in Wisconsin placed the burden on T.P. to go to the child support enforcement agency in Wisconsin after his release to have the issue of child support determined. Although the record shows that T.P. was incarcerated when S.P.W. was placed in the custody of the state in December 2007 and again at the time of the last Family Team Conference in December 2010, the record also indicates that there were times during this period when he was not incarcerated and could have provided support for this child. Hoggatt testified that support payments on behalf of S.P.W. would have been sent from Wisconsin’s support enforcement agency to Louisiana and would have been reflected on the database maintained by Support Enforcement Services in Louisiana. The department could find no evidence that T.P. ever had his child support obligation determined or paid support for S.P.W. while she has been in foster care.

T.P. correctly points out that his case plan ordered him to provide financial assistance to his mother, not the department, for S.P.W.’s care. However, the parent must demonstrate to the department that he is complying with his case plan. Hog-gatt’s testimony established that the 1 ^department had not received any information showing that T.P. had provided financial assistance to his mother for S.P.W.’s care as required by his case plan. None of the case plan reviews indicate that T.P. provided support or assistance on S.P.W.’s behalf.

In State ex rel. B.H. v. A.H., supra, this court concluded that even though the parent did not make significant contributions in support of his child in foster care, the trial court erred in ruling that the state had met its burden of proving the parent’s failure to provide financial support where the case plan did not call for or specify any parental contribution. Here, the case plan did require T.P. to provide financial assistance, but there is no evidence that he did so.

In State ex rel. J.T., 38,149 (La.App.2d Cir.12/17/08), 862 So.2d 1130, the father appealed the termination of his parental rights by arguing that the state provided no direct testimony of his failure to support the child. The appellate court rejected this argument upon finding that the ground for termination was established by clear and convincing evidence through the foster care case manager’s testimony that there was no indication of support provided by the father. Here, Ms. Hoggatt’s testimony established that the department received no indication that T.P. provided assistance that would constitute a significant contribution to S.P.W.’s care and support.

Hoggatt’s testimony and the absence of any record of financial contributions or other support provided by T.P. establishes by clear and convincing evidence that he failed to provide significant contributions to |9S.P.W.’s care and support for the requisite six month period under La. Ch. C. art. 1015(4)(b).

Additionally, T.P. argues that the department presented no up-to-date information to establish that termination is in S.P.W.’s best interest. He notes that no one from the department has visited her since she was placed in Wisconsin in December 2007, and that it has no firsthand knowledge about her life there. We find no merit to these arguments.

Hoggatt testified that the department’s counterpart in Wisconsin visited the foster home monthly and provided quarterly reports. Based on these reports, the department planned to recommend the paternal grandmother for adoption of S.P.W. upon termination. The record shows that T.P. had requested a home study and that the study had not approved his home for placement. The reasons for the denial were not admitted into evidence. The record also shows that T.P. had recognized that he was not in a position to take care of his daughter and that he had indicated that he wanted his mother to adopt her. Sometime prior to the termination hearing, apparently while he was again incarcerated or in a detention center for drug use, he repudiated that position and decided to challenge termination of his parental rights. However, the record establishes that T.P. has had minimal contact with S.P.W. over the years and that he has not provided support for her.

As recognized by the trial court, T.P.’s lack of contact with and support of the child while she was in Louisiana, his lack of support while she’s been in foster care in Wisconsin, and his incarcerations indicate a lack 110of stability and provide sufficient reasons to find that he has forfeited his parental responsibilities. Forcing S.P.W. to remain in foster care while her father rotates in and out of jail would deprive her of permanency and stability. Thus, as did the trial court, we find termination of parental rights to be in the child’s best interest.

CONCLUSION

For the reasons stated, we affirm the trial court’s judgment terminating the parental rights of T.P. as to S.P.W. No costs are assessed.

AFFIRMED.

ON REHEARING

Before WILLIAMS, STEWART, CARAWAY, PEATROSS and LOLLEY, JJ.

PER CURIAM

ON REHEARING.

_Jj_Our original opinion in this matter correctly noted that the state must prove the grounds for termination of parental rights by clear and convincing evidence. However, the opinion left out the word “much” in explaining what clear and convincing evidence means. Proof by clear and convincing evidence requires a showing that the existence of a disputed fact is highly probable, meaning much more probable than its nonexistence. State in the Interest of K.D., 586 So.2d 692 (La.App. 2d Cir.1991).

The applicant on rehearing also asserts that the opinion incorrectly places the burden on the parent to demonstrate compliance with the case plan to the department when it is the state who bears the burden of proof. The opinion makes clear that the burden of proof is on the state. However, it also recognizes that a parent who is working a ease plan must demonstrate to the department that he is complying with its requirements. Noncompliance will, unfortunately, lead to termination proceedings. In reviewing this record, there was no indication of T.P.’s compliance or attempt to comply with the case plan requirement that he provide financial assistance for the child’s care.

With these clarifications to our original opinion, the application for rehearing is denied.


author: MOORE, J. CARAWAY, J., BROWN, C.J., and PEATROSS, J.

text:
    Santo FERRARA and Annie Wolfgang Ferrara, Plaintiff-Appellees v. QUESTAR EXPLORATION AND PRODUCTION CO. and Ollie Arlene Phelps, Defendant-Appellants.
    No. 46,357-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 29, 2011.
    Concurring Opinions on Denial of Rehearing Aug. 4, 2011.

      Jones Walker, et al, by Michael Beatty Donald, Nicole M. Duarte, Joshua Norris, for Appellants, Questar Exploration and Production Co. and Ollie Arlene Phelps.
    Liskow & Lewis, APLC, Lafayette, LA, by Lawrence P. Simon, Jr., Stuart T. Welch, for Amicus Curiae, Louisiana Oil and Gas Association.
    Davidson, Jones & Summers, APLC, Shreveport, LA, by Grant E. Summers, Randall S. Davidson, Wm. Lake Hearne, Jr., for Appellees, Santo Ferrara and Annie Wolfgang Ferrara.
    Before BROWN, WILLIAMS and MOORE, JJ.
   MOORE, J.

L Questar Exploration <& Production Co. appeals a judgment that partially (as to “deep rights,” below the Hosston formation) dissolved a mineral lease on a finding that Questar failed to explore or develop the leased property with respect to Haynesville Shale and awarded the lessors attorney fees of $71,773.20. The lessors, Santo and Annie Ferrara, have answered the appeal, seeking additional attorney fees. The Louisiana Oil & Gas Association (“LOGA”) has filed an amicus curiae brief, aligning itself with Questar and seeking reversal. For the reasons expressed, we reverse and render.

Factual Background

The Ferraras own a 48-acre tract in DeSoto Parish. In November 1988, they granted an oil, gas and mineral lease to Long Oil Co. with a three-year term and the standard habendum clause. In late 1988 and early 1989, Long Oil drilled two wells (Jones # 1 and Jones # 2), not on the leased premises but on lands unitized with it. These wells went to the Hosston and Glen Rose formations and have been in continuous production ever since. A well drilled on the leased premises (Ferrara # 1) in 1990 was a dry hole. Long Oil assigned its rights to Tide West Oil Co. in 1993.

In 1994, the Ferraras made a demand on Tide West for further exploration and/or development pursuant to the lease. As a result, Tide West granted a partial release of the lease, as to the Baker Lime formation, in 1995. Questar acquired Tide West’s rights by various assignments in 121999. In 2000, Questar drilled a well (Lillie Smith Alt. # 1) not on the leased premises but on land unitized with it. This well went into the Hosston formation and has been in continuous production ever since.

In short, there is currently no active well on the leased premises and no drilling has occurred since 1990, although the Fer-raras have received royalties of roughly $88,000 from three wells on unitized lands since 1989. According to Questar, the Ferraras made no further demands for exploration or development until 2008.

In March 2008, however, things changed when Chesapeake Energy publicly announced the discovery of the Haynesville Shale formation as a large and potentially profitable natural gas play. On August 18, 2008, the Commissioner of Conservation issued a memorandum recognizing that the Haynesville Shale zone “has been shown to be both laterally continuous and productive over an extensive area” and dispensing with the production test requirement for proposed units in the Haynesville Shale.

One week later, on August 25, 2008, the Ferraras sent a certified letter to Questar demanding that it release the lease below the Hosston formation or, alternatively, explore and develop the deeper zones, including the Cotton Valley and Haynesville Shale formations. Mr. Ferrara testified that the object of the letter was to “get the lease back” but he received no response of any kind from Questar. Questar concedes that it did not promptly act on the letter.

| ^Procedural History

Forty-six days later, on October 10, 2008, the Ferraras filed this suit demanding dissolution of the lease, damages and attorney fees; in the alternative, they demanded a partial release below the Hos-ston formation. Questar denied all claims.

In discovery, the Ferraras stated they would call as an expert Homer H. Peel, an “independent landman specializing in database research and tracking spreadsheets.” Peel’s October 2009 report summarized data from the Department of Conservation’s Website, SONRIS, specifically how many wells were drilled in the Haynesville Shale and how many were drilled by Ques-tar. Questar filed a motion to exclude Peel’s testimony under La. C.E. art. 702 as he performed no independent research and drew no conclusions. Questar also filed a motion for summary judgment, urging that the Ferraras could not prove an unreasonable failure to explore. Questar attached a list of undisputed facts and a copy of Peel’s report, but offered no evidence of its own. The district court denied both of Questar’s motions.

The matter proceeded to trial over two days in May 2010. Only three witnesses testified. The elderly Mr. Ferrara and his son, Mark Ferrara, who assisted him in business matters, described the facts outlined above. They also testified that about six days before trial, they received a letter from Questar offering to develop a unit including the leased premises; Questar argued that this letter was actually from a separate entity, J-W Operating l4Co., with no connection to Questar, providing notice of intent to create a unit in the Haynesville Shale. The third witness was Peel, whom the court accepted as an expert in “compilation of public information on Haynesville Shale, obtained through the official Website of the Department of Conservation.” He testified that through the end of 2008, 150 wells had been permitted, drilled or completed in the nine-township area around the leased premises, and Questar had drilled 70 wells in the Haynesville Shale on property other than the Ferrar-as’. Questar raised frequent and strident objections to Peel’s expertise and contended that under the “suspension doctrine,” evidence of exploration or development occurring after suit was filed was inadmissible; however, the court allowed Peel’s testimony.

With this evidence, the Ferraras rested their case. Questar moved for involuntary dismissal as to the claims for damages, attorney fees and the principal claim for breach of the implied duty to explore and develop. The court granted the motion with respect to damages only (a ruling not contested on appeal) but otherwise denied.

Questar then rested without presenting any evidence. The matter was submitted on post-trial briefs.

Action of the District Court

The court issued an 11-page written ruling, noting the “unique characteristics of the Haynesville Shale” and the fact that Questar provided no evidence in its casein-chief. The court rejected the suspension doctrine as an equitable remedy that predated the Mineral Code, and expressly relied on evidence of exploration activities that occurred after the Ferraras filed |fithis suit as proof of the lessee’s duty to explore. The court also found “significant evidence” that Questar was fully aware of the economic viability of the Haynesville Shale, and as a result “there are plans to drill wells in every section or every square mile.” However, Questar “presented no evidence of its intention to develop the subject property as to the Haynesville Shale,” and the court considered Questar’s conduct toward the Ferraras “troubling.” The court found that Questar “never had any intention to develop the plaintiffs’ deep rights,” and thus violated its statutory duty to “develop and operate the property leased as a reasonably prudent operator.” La. R.S. 81:122. The court dissolved the lease as to all depths below the Hosston formation. At a later hearing, the court awarded attorney fees and costs as itemized in counsel’s affidavit, $71,773.20.

Questar has appealed suspensively, assigning seven errors. LOGA has filed an amicus curiae brief, also seeking reversal. The Ferraras have answered, seeking additional attorney fees for defending the appeal.

Discussion: Allowance of Expert Testimony

By its fifth and sixth assignments of error, Questar urges the court abused its discretion in allowing Peel, who merely collected and summarized publicly available and unverified information from the Internet, to testify as an expert; and in admitting certain summaries and exhibits prepared by Peel that were not included in his expert report and not verified by him. Questar argues that Peel merely downloaded and displayed data from the Commission’s SONRIS Website in an effort to “launder” inadmissible hearsay into admissible expert testimony; that six exhibits (P-j22fi through 27) contained “new” information not included in his original report; and Peel made no effort to verify the SONRIS postings by checking the actual data files.

The Ferraras respond that the court did not abuse its discretion in accepting Peel as an expert, as he possessed “other specialized knowledge” that assisted the court; and the SONRIS data on which he relied fell under hearsay exceptions for public records and reports; tabulations, lists, directories or other published compilations; and general trustworthiness. The Ferrar-as also show that Questar specifically declined the court’s offer of a continuance to review the six contested exhibits, thereby waiving any objection.

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. La. C.E. art. 702. The admission of expert testimony is proper when: (1) the expert is qualified to testify competently regarding the matters he intends to address, (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated by Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and (3) the testimony assists the trier of fact through the application of scientific, technical or specialized expertise. Cheairs v. State, 2003-0680 (La.12/3/03), 861 So.2d 536; Succession of Pardue, 40,177 (La.App. 2 Cir. 11/8/05), 915 So.2d 415, writ denied, 2006-0125 (La.4/28/06), 927 |7So.2d 284. The district court has broad discretion in determining whether to admit expert testimony. Walker v. Avondale Indus. Inc., 2009-0128 (La.1/28/09), 999 So.2d 735. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. La. C.E. art. 703; Wyatt v. Hendrix, 43,559 (La.App. 2 Cir. 11/5/08), 998 So.2d 233; Turner v. Lyons, 2003-0186 (La.App. 4 Cir. 1/28/04), 867 So.2d 13, writ denied, 2004-0741 (La.5/14/04), 872 So.2d 530.

At first blush, it might appear superfluous or redundant to admit expert testimony merely to summarize information available to the world on a public Website. However, the SONRIS statistics are fairly dense in their presentation and may not be easily grasped by a person unversed in oil and gas. Peel’s report, tables and testimony appear to make some sense out of a mountain of impenetrable data. Given the showing that Peel was indeed competent in his narrow field, and the district court’s wide discretion to regulate what kind of evidence might assist it in resolving the ultimate issue, we cannot say the court abused its discretion in accepting Peel as an expert and in admitting his report, tables and testimony. Walker v. Avondale Indus. Inc., supra. Moreover, the expert may utilize inadmissible data if it is of the sort normally used by experts in the field. La. C.E. art. 703; Wyatt v. Hendrix, supra; Turner v. Lyons, supra. There was no showing that experts (or laymen) seeking to plot trends in exploration and development in a | particular area or stratum would not use SONRIS data. Finally, Peel was subjected to extensive cross-examination, but Questar did not show a single instance in which SONRIS data was inaccurate. The district court did not abuse its discretion; these assignments lack merit.

Suspension Doctrine

By its second assignment of error, Ques-tar urges the court erred in considering and relying on evidence of post-suit activity in the Haynesville Shale formation by Questar and others to determine whether Questar breached its obligation. Specifically, the court refused to apply (a) the suspension doctrine, (b) the lease’s own suspension provision, and (c) the general rule that the plaintiff must prove its case. Questar identifies the suspension doctrine as the “well-settled” law that “a mineral lessor’s suit challenging the validity of a mineral lease relieves the lessee of its exploration and development obligations during the pendency of the suit.” Perkins v. Long-Bell Petr. Co., 227 La. 1044, 81 So.2d 389 (1955). Questar urges the suspension doctrine survived the 1974 enactment of the Mineral Code, as a federal district court applied it in Noel v. Amoco Prod. Co., 826 F.Supp. 1000 (W.D.La.1993). Questar also cites the lease, ¶ 11, which allows the lessee to “suspend all payments without interest until there is a final adjudication or other determination of such dispute.” Finally, Questar urges that evidence of what it did after suit was filed was simply irrelevant to prove whether it breached an obligation before the suit.

The Ferraras respond that the district court has wide discretion in ruling on evi-dentiary questions and was within its discretion to consider |9conduct occurring after suit was filed. They contend that the suspension doctrine was an equitable rule dating from Leonard v. Busch-Everett Co., 139 La. 1099, 72 So. 749 (1916), but that it was preempted by the 1974 enactment of the Mineral Code. La. R.S. 31:2; La. C.C. art. 561, comment (a). They argue that at least two reported cases have allowed post-default evidence in a claim of failure to explore or develop. Rathborne Land Co. v. Ascent Energy Inc., 2008 WL 5427751 (E.D.La.2008), fn. 7, vacated on other grounds, 610 F.3d 249 (5 Cir.2010); Edmundson Bros. Partnership v. Montex Drilling Co., 1998-1564 (La.App. 3 Cir. 5/5/99), 731 So.2d 1049. Even if the concept somehow survived, they contend there was no equitable basis to apply it, as their suit did not prejudice Questar’s ability to explore. Finally, they dispute that the contractual suspension of ¶ 11 applies to this case.

The “suspension doctrine” was predicated both on former La. C.C. art. 792, which suspended the prescription of nonuse when the owner of a dominant estate was prevented from exercising the servitude by an obstacle that he could neither prevent nor remove, and on equity. Perkins v. Long-Bell Petr. Co., supra; Baker v. Potter, 223 La. 274, 65 So.2d 598 (1953) (on rehearing). Notably, the operative document here is the Ferraras’ 1988 oil, gas and mineral lease, a contract regulated by the Mineral Code, La. R.S. 31:114, and not a mineral servitude. Moreover, equity applies only when “no rule for a particular situation can be derived from legislation or custom,” La. C.C. art. 4. Given these facts, the district court did not err in |10declining to apply the suspension doctrine.

Paragraph 11 of the lease provides, in pertinent part:

Should the right or interest of Lessee hereunder be disputed by Lessor, or any other person, the time covered by the pendency of such dispute shall not be counted against Lessee either as affecting the term of the lease or for any other purpose, and Lessee may suspend all payments without interest until there is a final adjudication or other determination of such dispute.

This passage entitles the lessee to suspend the running of time and payment of royalties until a final adjudication of a dispute, but it applies only when the lessor (or any other person) disputes “the right or interest of Lessee hereunder.” The Ferraras did not dispute Questar’s right or interest in the lease; rather, they acknowledged the lease and sought to dissolve it for Questar’s failure to act as a reasonably prudent operator. The district court did not err in declining to apply the contractual suspension provision.

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. The district court has great discretion concerning the admission of evidence at trial, and its decision to admit or exclude evidence may not be reversed on appeal in the absence of an abuse of that discretion. Medine v. Roniger, 2003-3436 (La.7/2/04), 879 So.2d 706; Fields v. Walpole Tire Serv., 45,206 (La.App. 2 Cir. 5/19/10), 37 So.3d 549, writ denied, 2010-1430 (La.10/1/10), 45 So.3d 1097. When evidence which is admissible for one purpose but not for another is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury ^accordingly. La. C.E. art. 105. In a bench trial, jury instructions obviously do not apply, leaving the district court wide discretion to consider admissible evidence for whatever purposes it deems necessary. Hager v. State, 2006-1557 (La.App. 1 Cir. 1/16/08), 978 So.2d 454, writs denied, 2008-0347, -0385 (La.4/18/08), 978 So.2d 349.

We agree with Questar that to prove whether a breach occurred as of the date of suit, evidence of subsequent events would be irrelevant and inadmissible. However, the district court also tried to infer Questar’s intent to explore or develop Haynesville Shale on or around the leased premises, and considered that evidence of post-suit activity would prove or negate such intent. Given the court’s exceptionally broad discretion in ruling on the admissibility of evidence, we cannot say this was plainly wrong. The fact that the evidence was not admissible to prove the initial breach did not prevent the court from admitting it and assigning it the proper weight. La. C.E. art. 105; Hager v. State, supra. The district court did not abuse its discretion; this assignment lacks merit.

Finding of Breach

By its first, third and fourth assignments of error, Questar urges the district court erred in finding that it breached its obligation to explore and/or develop the leased premises as a reasonably prudent operator and hence erred in canceling the lease. Cancellation is a harsh remedy that is rarely granted; the breach must be substantial to warrant dissolution. Rivers v. Sun Exploration & Prod. Co., 559 So.2d 963 (La.App. 2 Cir.1990); Taussig v. Goldking Properties Co., 495 So.2d 1008 (La.App. 3 Cir.1986). The 112Mineral Code, La. R.S. 31:122, requires the lessee to act as a “reasonably prudent operator” based on the totality of the facts, including the factors listed in Vetter v. Morrow, 361 So.2d 898 (La.App. 2 Cir.1978), deferring to the reasonable judgment of the lessee; Questar contends that the factors do not support the finding of a breach. Questar also argues that the mere failure to drill within a specified time does not imply a breach of the lessee’s obligation. Carter v. Arkansas La. Gas Co., 213 La. 1028, 36 So.2d 26 (1948). Further, the court improperly shifted the burden of proof with respect to the reasonableness of the lessee’s conduct from the plaintiffs to the lessee, an error that resulted in reversal of a judgment that canceled a lease in Frazier v. Justiss Mears Oil Co., 391 So.2d 485 (La.App. 2 Cir.), writ denied, 395 So.2d 340 (1980). Specifically, Questar contends the court erred in interpreting its failure to answer the Ferraras’ demand letter as a “persistent refusal” to develop the leased premises. Finally, Questar urges the court erred in fashioning a “Haynesville Shale exception” to the established principles of Louisiana law, and concludes that the facts closely resemble other cases which found no breach of the lessee’s obligation under R.S. 31:122. Saulters v. Sklar, 158 So.2d 460 (La.App. 2 Cir.1963), writ ref'd, 245 La. 638, 160 So.2d 227 (1964); LeJeune v. Superior Oil Co., 315 So.2d 415 (La.App. 3 Cir.1975); Frazier v. Justiss Mears Oil Co., supra.

The Ferraras respond that the court committed no manifest error, and in fact properly assessed the relevant factors and found a lack of prudent | 13development, as in Vetter v. Morrow, supra. They cite Questar’s news releases and shareholder reports as proof that the company was fully aware of the immense value of the Haynesville Shale, yet failed to do anything on the leased premises. They also submit that Questar failed to answer their demand letter, repeatedly delayed the trial, and then put on no case at all; given this total lack of evidence, the court was entitled to find a breach of R.S. 31:122.

The lessee’s obligation is defined in R.S. 31:122 as follows:

A mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessee. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.

The main consideration of a mineral lease is the development of the leased premises for minerals; the lessee must develop with reasonable diligence or give up the contract. Carter v. Arkansas-La. Gas Co., supra; Taussig v. Goldking Properties Co., supra. The lessee also owes the duty of further exploration after initial production in paying quantities has been obtained. Id.; LeJeune v. Superior Oil Co., supra. In determining a lessee’s compliance with R.S. 31:122, a court must consider the totality of the circumstances bearing on the lessee’s overall operations and measures taken for future development. Useful factors in this inquiry include (1) geological data, (2) number and location of wells drilled, (3) productive capacity of wells, (4) cost of drilling operations compared to profits, (5) time interval between completion of the last well and the demand for additional operations, and (6) acreage involved in the disputed lease. Vetter v. |14Morrow, supra; Allen v. Horne, 478 So.2d 671 (La.App. 2 Cir.1985).

In light of these factors, the record evidence simply does not support the district court’s conclusions. A persistent theme in the cases ordering cancellation of leases for failure to explore or develop is the presence of expert testimony that based on geological data, a prudent operator would drill a well on the subject property. Carter v. Arkansas La. Gas Co., supra; Vetter v. Morrow, supra; Morrison v. D & L Partnership, 499 So.2d 988 (La.App. 3 Cir.1986). The Ferraras’ expert, Peel, was not a geologist and did not purport to offer any opinion as to whether placing a new well on their property was prudent. In Saulters v. Sklar, supra, and Frazier v. Justiss Mears Oil Co., supra, the absence of expert testimony to this effect was fatal to the lessors’ claims. We certainly understand the district court’s sense of awe at the potential of the Haynesville Shale, but there is inadequate support for a blanket finding of “plans to drill wells in every section or every square mile.” More importantly, there was no evidence that a prudent operator utilizing geological data would have drilled on the Ferraras’ property to the Haynesville Shale depth by the date of trial.

Through Peel, the Ferraras showed that 12 different operators had permitted, drilled or completed 150 wells to the Haynesville Shale formation in the nine-township area (324 square miles) around the leased premises. They also showed that Questar considered the Haynesville Shale a “world class asset” in which it had increased its acreage to 43,000 acres and drilled six straight wells with 24-hour peak rates of over 20 MMcfid. However, there was no evidence of the productive capacity of the other 11swells or the cost of drilling operations compared to profits. In short, most of the critical evidence under Vetter v. Morrow, supra, is simply lacking.

The time frame is also significant. Since the Ferraras leased their property in 1988, a lessee drilled a dry hole on the premises in 1990, and in 1995 the Ferraras obtained a partial release of another lessee’s obligation to explore and develop the Baker Lime formation. In short, by the time of trial it had been almost 20 years since any exploration occurred on the leased premises. However, the Ferraras had received steady royalties from three wells, drilled to shallower formations on lands unitized with the leased premises. Chesapeake Energy announced the Haynesville Shale in March 2008, and the Commissioner dispensed with test wells on August 18, 2008. Exactly one week later the Ferraras wrote to Questar demanding a release from the lease below the Hosston formation; only in the alternative did they request exploration or development of these strata. Receiving no response, they filed this suit 46 days later.

Summarizing Louisiana’s jurisprudence regarding the obligation to explore Professor Thomas Harrell described the applicable time element as follows:

The burden of the lessor can be met by showing that there is reason to believe that diligent investigation of the leased premises might disclose the presence of potentially profitable oil and gas deposits and that the lessee refuses or has persistently failed to reasonably investigate such possibilities, even though it cannot be shown that a profitable well could be drilled or even that the results of the investigation would be favorable for development.

11fiThomas A. Harrell, “A Mineral Lessee’s Obligation to Explore Unproductive Portions of the Leased Premises in Louisiana,” 52 La. L.Rev. 387, 400 (1991) (emphasis added).

We completely understand the Ferraras’ (not to mention the district court’s) impatience and indignation at Questar’s inexplicable failure even to acknowledge the demand letter, its dilatory conduct after suit was filed, and its unhelpful strategy of putting on no evidence. However, the Ferraras received royalties from shallow strata continuously since 1988 and made no demand for further exploration or development since 1994. The instant demand came a mere one week after the Commissioner recognized the potential of the Haynesville Shale by dispensing with test wells; suit was filed only 46 days after the unanswered demand letter. The record is utterly devoid of evidence that any reasonably prudent operator could have begun exploration, much less drilled a well to the deep Haynesville Shale stratum, within this remarkably short time. The evidence falls far short of proving that Questar persistently failed to reasonably investigate the leased premises for potentially profitable oil and gas deposits. Id., and citations therein.

The district court was plainly wrong to find that Questar never intended to develop the Ferraras’ deep rights. The record does not support a finding that Questar failed to act as a reasonably prudent operator for the mutual benefit of itself and its lessor as required by R.S. 31:122. While the evidence shows a dismaying degree of indifference on Questar’s part, it falls far short of satisfying the usual elements outlined in Vetter v. Morrow, supra, and the jurisprudence. These assignments of error have merit. The judgment partially canceling the mineral lease is reversed.

| ^Attorney fees

By its seventh assignment of error, Questar urges the district court erred in assessing attorney fees. It contends that under La. R.S. 31:207, attorney fees are allowed only if the lease is “extinguished or expired,” and that partial cancellation does not warrant attorney fees. Leaderbrand & Hardy v. Shallow Oil Co., 234 La. 796, 101 So.2d 673 (1958). The Ferraras respond that another provision of the Mineral Code, R.S. 31:209, authorizes attorney fees for “a demand for dissolution of a mineral lease for failure to comply with its obligations,” that Shallow Oil’s statement was merely dictum, and that other cases awarded attorney fees for a partial dissolution. Nunley v. Shell Oil Co., 229 La. 349, 86 So.2d 62 (1956); Goodrich v. Exxon Co. USA, 608 So.2d 1019 (La.App. 3 Cir.1992), writ denied, 614 So.2d 1241 (1993). By answer to appeal, they request an additional attorney fee of $15,000 for handling the appeal. Hollenshead Oil & Gas v. Gemini Explorations Inc., 45,389 (La.App. 2 Cir. 7/21/10), 44 So.3d 809, writ denied, 2010-2046 (La.11/12/10), 49 So.3d 892.

Attorney fees are not allowed except where authorized by contract or statute. Sher v. Lafayette Ins. Co., 2007-2441 (La.4/8/08), 988 So.2d 186; Hollenshead Oil & Gas v. Gemini Explorations, supra. The applicable statute is R.S. 31:209:

The right to secure damages and attorney’s fees under Article 207 is applicable also to a demand for dissolution of a mineral lease for failure to comply with its obligations.

Although the statute does not expressly refer to a successful demand for dissolution, we are aware of no authority to award attorney fees for an 118Sunsuccessful demand. Because we find that the Ferraras failed to prove their right to a dissolution or partial dissolution of the lease, we reverse the award of attorney fees and dismiss the claim for additional fees.

Conclusion

For the reasons expressed, the judgment is reversed and judgment is rendered dismissing the Ferraras’ claims at their cost.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, PEATROSS and MOORE, JJ.

Rehearing denied.

CARAWAY, J.,

would deny rehearing.

|tI concur in the result of the majority opinion and would deny rehearing. However, the importance of the emerging issue over the lessee’s obligations for the exploration and development of a horizontal blanket formation for oil or gas hydrocarbons requires me to express my different view of the governing law and to identify certain facts unexplained in the majority opinion upon which this particular case turns. Most importantly, the legal rulings do not follow the prior jurisprudence and the Louisiana law and will cloud future shale development actions by lessors against lessees.

A misnamed suspension “doctrine” is cast aside by the majority as untethered equity without any analysis of the parties’ contractual obligations in this breach of lease action. The lessee is thus admonished for “its dilatory conduct after suit was filed.”

The mineral lease is a special contract importing real rights and obligations. La. R.S. 31:114 and 31:16. Like the predial lease addressed in the Civil Code, the mineral lease is a bilateral contract where both parties obligate themselves reciprocally. La. C.C. arts. 2668 and 1908. The contract provides for a “continuous or periodic performance” so that its dissolution would fall under La. C.C. art. 2019, and a partial dissolution for the lessee’s failure to develop a formation or formations would be expected. La. C.C. art. 2019; La. R.S. 31:142. With this breach of contract action, the mineral lessor’s correlative obligation, as set forth in the Mineral Code and now implicated, is his duty “to refrain from disturbing the lessee’s possession.” La. R.S. 31:119. The lessor warrants the use and peaceful ^possession of the lease premises and is bound to deliver those premises for use by the lessee. Id. If the lessor is wrong about the lessee’s breach, the lessor’s suit is a violation of his duty to refrain from disturbing the lessee’s possession. The remedy for such a violation by a lessor, assuming the claim for dissolution was made in good faith, is to delay the lessee’s obligation for continued performance until the suit has ended.

This warranty concept was involved in the early ruling in Smith v. Kennon, 188 La. 101, 175 So. 763 (1937) where the mineral lessee sued the lessors after the lessors’ execution of a top lease to another party. Finding a viable cause of action, the court ruled:

The landowners, by a subsequent lease contract having granted identical rights to another, have, in effect at least, said to plaintiff that they are no longer obligated to him and will not permit him to exercise the right which he claims. By making the second lease, they have repudiated their contract with plaintiff. Plaintiff, therefore, has a personal action against the landowners to have it judicially determined whether or not his lease contract is still in full force and effect.

Id. The lessee’s rights which the lessors would not permit were the possessory rights to the premises for the exploration and production of minerals. His lease title was repudiated and development of the lease under that cloud was out of the question. If the granting of a top lease is an informal repudiation, the lessor’s filing of a suit for dissolution of the lease is a formal repudiation, placing the continuous performance obligations of the lessee in jeopardy.

This court’s ruling in Lelong v. Richardson, 126 So.2d 819 (La.App. 2d Cir.1961) directly addressed the lessee’s obligation for continued development of the lease in the face of the lessor’s suit for lease | .^cancellation. The court held “that continued development was prevented, first, by the lack of a market for gas, and second, by the institution of plaintiffs suit.” Id. at 830. Although a discussion of legal principles was not given in Lelong, the common sense principle is that a mineral lessee can hardly be expected to attempt to enter the lease premises and expend the large investment of an oil and gas well while the lessor is insisting in a pending lawsuit that the lease has ended by the lessee’s prior failure to act. Such lawsuit is a refusal of the lessor to perform his obligation “to deliver the premises that he has leased for use by the lessee.” La. R.S. 31:119. In this bilateral setting, the lessee cannot render performance faced with the lessor’s refusal to perform.

The above analysis is not a “doctrine” gleaned from mere equity. It does not concern suspension of prescription, as no servitude theory is involved. It is an analysis of the parties’ bilateral relationship in a lease contract requiring a continuous performance by both. It was articulated precisely by the Supreme Court in Perkins v. Long-Bell Petroleum Co., 227 La. 1044, 81 So.2d 389 (1955), as seen by the quote from that case cited by the majority and then ignored. It was applied by this court in Lelong. Finally, with the Mineral Code’s express statement of the lessor’s obligation to deliver the use and peaceful possession of the lease premises, this basic analysis of the parties’ bilateral obligations is not altered in any manner by that Code.

With this mistaken discarding of established law, the majority then proceeded with a confusing discussion over the relevant and irrelevant | ¿evidence for the measure of a reasonably prudent operator in this case. Since Questar was prevented from developing plaintiffs property after the filing of this suit in October 2008, it does not matter that a reasonably prudent operator should have drilled a Haynesville Shale well affecting plaintiffs property in 2009 or by the time of trial. When the evidence is detailed further, that is all that the plaintiffs evidence tended to prove.

The majority opinion references 150 Haynesville Shale wells without identifying the time period for the drilling and completions for those wells and the well locations in relation to the plaintiffs property. The plaintiffs brief for rehearing summarizes these 150 wells as located within a “nine-township area surrounding the plaintiffs property,” where those wells were permitted, drilled and/or completed by twelve other operators from March 2008 until the time of trial in May 2010. Within this huge 324 square-mile area covering over 200,000 acres in multiple parishes, the first well which plaintiff argues as relevant to his claim was permitted by the Office of Conservation in Section 17, Township 12 North, Range 14 West, some four miles away from the plaintiffs tract in Section 22, Township 12 North, Range 15 West. The permit for that well was issued on October 6, 2008, only four days before the institution of this suit. That well is the only well permitted before the filing of this suit which plaintiff asserts as indicative of Questar’s failure to develop his property. Yet, that well was not completed until January 2009. The other 15 nearby wells (out of the 150), which plaintiff argued at trial and on rehearing, were all permitted and drilled after the filing of suit.

| sFrom this crucial well data, plaintiffs demand for a breach of the lease occurred in August 2008 when no other operator had successfully completed and produced a Haynesville Shale well in the vicinity of plaintiffs property. Questar was charged by plaintiff for its failure to perform as a reasonably prudent operator when no other operator had yet demonstrated an established productivity of the formation with an economic return in any well nearby. Without any nearby example of a Haynesville Shale test, this is not the case for any “Haynesville exception” to the measure of the development obligation of the reasonably prudent operator which plaintiff urges.

BROWN, C.J., and PEATROSS, J.

|,We concur in the result of the majority opinion and would deny rehearing for the reasons expressed in Judge Caraway’s concurrence.

      . This provided, in ¶ 2, that in addition to the primary term, the lease would continue "as long thereafter as (1) oil, gas, sulphur or other mineral is produced from said land hereunder or from land pooled therewith; or (2) it is maintained in force in any other manner herein provided.”

      . Chesapeake’s news release referred to it as a "new unconventional gas discovery” requiring wells 10,000 to 13,000 feet deep.

      . ¶ 12 of the lease provides, “in the event the Lessor considers that operations are not being conducted in compliance with this contract, Lessee shall be notified in writing of the facts relied upon as constituting a breach hereof and Lessee shall have sixty (60) days after receipt of such notice to comply with the obligations!.]” However, because Questar filed no exception of prematurity, it waived its right to claim the full 60 days.

      . The article has been reenacted as La. C.C. art. 755 and now suspends prescription for only 10 years. 1977 La. Acts No. 514.

      . Questar also cites an unpublished writ grant in which this court rejected the same district court's finding that tire Haynesville Shale’s "quality and composition render it different from ordinary minerals” and entered a summary judgment dismissing the plaintiffs' claim to rescind a mineral lease in DeSoto Parish. Thomas v. Long Petr. LLC, 46,051 (La.App. 2 Cir. 10/28/10) (unpublished writ grant).

      . Questar’s teleconference report to shareholders on April 30, 2009, also stated that since the initial boom natural gas prices had dropped 40-50% and that the market was “oversupplied."