author: KNOLL, Justice. GUIDRY, Justice, CLARK, Justice,

text:
    Robert L. THOMAS v. Cynthia BRIDGES, Secretary Department of Revenue, State of Louisiana.
    No. 2013-C-1855.
    Supreme Court of Louisiana.
    May 7, 2014

      Department of Justice, State of Louisiana, James D. Caldwell, Attorney General, Louisiana Department of Revenue, Miranda Yvette Conner, Johnette L. Martin, Jason M. DeCuir, Baton Rogue, Kimberly Doley, States & Lavergne, LLC, Russell J. States, Jr., Lake Charles, for Applicant.
    Glenmore P. Powers, II, Pro Hac Vice, Counsel for A/C Multistate Tax Commission, Amicus Curiae for Applicant.
    Seale & Ross, PLC, Carl Samuel Goode, Kevin Paul Landreneau, Johanna R. Lan-dreneau, Hammond, for Respondent.
   KNOLL, Justice.

| ]This case concerns whether someone can form an out-of-state limited liability company (LLC) for the purpose of avoiding payment of Louisiana sales tax. The Louisiana Department of Revenue (“Department”) assessed a sales tax against plaintiff, Robert Lane Thomas, who is a Louisiana resident and admitted he formed a Montana LLC solely to avoid the Louisiana sales tax for the purchase of a recreational vehicle. Although the Board of Tax Appeals affirmed the assessment against Thomas, the District Court reversed the assessment. The Court of Appeal upheld the reversal, finding Thomas’s appeal met the Department’s procedural requirements, and the Department failed to show the veil of the Montana LLC should be pierced and further failed to show Thomas should be held individually liable. For reasons discussed below, we find this issue involves policy considerations that should be addressed by the Louisiana Legislature rather than resolved by this Court. Our function is to merely interpret the laws passed by the legislature, not to make laws.

| .FACTS AND PROCEDURAL HISTORY

In December of 2007, Thomas and Dixie RV Super Store (“Dixie RV’) in Hammond, Louisiana, entered into negotiations for the sale of a 2008 Mountain Aire RV (“RV’). Dixie RV drew up a purchase agreement on December 8, 2007, with Thomas listed as buyer, signed by a representative of Dixie RV, on the basis of which Thomas admitted to putting down a $1,000 deposit. On December 11, 2007, Thomas formed a single member LLC, Angels Rocks, LLC, under the laws of the state of Montana. It is undisputed Thomas formed this LLC solely to avoid paying sales tax on the RV and that the purchase of the RV is the only business which the LLC has conducted. Montana is the only state which imposes no sales tax for the purchase of vehicles on its residents, including resident LLCs. On December 14, 2007, a purchase agreement with “Angels Rocks, LLC” listed as buyer at the top of form was executed by both parties and was signed by Thomas and his wife, Connie,. Thomas, in the buyers’ signature blocks at the bottom. The RV was purchased with a certified check in the name of Angels Rocks, LLC, for $351,800, and a Certificate of Title was issued for the RV by the State of Montana. Although Louisiana sales/use tax on the purchase, had it been applicable, would have amounted to more than $30,000, the purchase agreement reflects only a $174 charge for “license/vehicle/registration” costs.

The Department issued a Notice of Proposed Tax Due to Thomas on November 5, 2009, for sales/use tax to be paid on the RV. The notice contains no ^explanation for why Thomas rather than Angels Rocks, LLC, was assessed. In response, Thomas wrote a brief letter, stating simply, “In reference to my recreational vehicle, I would like to supply you with the following information. My RV is kept at my residence in Long Beach, Ms., therefore I object to the proposed tax due.”

On December 23, 2009, Carle Goode, Thomas’s attorney, sent a letter on behalf of “Mr. Robert L. Thomas” protesting the proposed tax, enclosing a copy of the RV’s bill of sale and certificate of title, and stating the RV was not located in Louisiana and was purchased by a validly formed out-of-state LLC “which does |4not do business in Louisiana.” The letter further averred, “In the event any tax is owed, which we strongly deny, the proper party to collect the tax from is the purchaser of the vehicle, Angels Rocks, LLC.” Next, the record reflects the Department responded on January 27, 2010, to Mr. Goode with a letter confirming receipt of the December 23, 2009 letter and stating:

The [Department] is currently reviewing the referenced tax assessment. It has been determined a[RV] was purchased in the name of Angels Rocks, LLC on 12/14/2007. The purchase agreement shows the Buyer(s) as Lane Thomas and Connie L. Thomas (signatures listed as Buyer). Robert Lane Thomas and Connie L. Thomas are residents (domiciled) of Louisiana....
Louisiana residents, who are being audited for failure to pay Louisiana motor vehicle tax (Louisiana and Parish sales/ use tax) on the purchase of a Recreational Motor Vehicle (RV), must prove that the RV is not garaged, regularly serviced and/or utilized in Louisiana. If the RV is registered in an LLC name, the LLC must be shown to be a functioning business and does not garage or primarily use the RV in Louisiana ...

The next correspondence in the record is a February 4, 2010 letter from the Department to Mr. Goode stating:

Per our telephone conversation on February 2, 2010, you have stated that it is your client’s (Angels Rocks, LLC/ Robert L. Thomas) position that they will not provide the documentation that was requested in the LDR letter dated January 27, 2010.
The requested information is needed to determine if the LLC members’ RV purchase, use, storage or income tax filings are in compliance with the Louisiana statutes.... The registration of a business entity in a nonresident state does not by itself establish a business situs, use or storage location for the business’ assets. As of date[sic], the only documentation that has been provided is a certificate of title and a bill of sale. This documentation does not address business purpose or activity of the LLC or situs, usage or storage of the RV....

On July 20, 2010, the Department issued a final notice of assessment to Thomas, asserting taxes and penalties of $46,509.60 were owed. On March, 18, 2010, Thomas filed a petition for review with the Board of Tax Appeals (“Board”) alleging he owed no sales tax because Angels Rocks, LLC, purchased the vehicle. | flThe Board held a hearing on the appeal on August 10, 2010. On September 16, 2010, the Board issued a judgment stating, “After considering the pleadings, evidence and argument of counsel, the Board rules that the taxes are due and the assessment is upheld.”

Thomas appealed the Board’s decision to the 21st Judicial District Court. The Department moved for dismissal of the appeal for Thomas’s failure to follow the procedure for appeal outlined in La.Rev. Stat. § 47:1434. The District Court declined to dismiss the appeal and reversed the Board’s decision, finding, “[w]hat [Thomas] did was permissible under the law” and he was not personally liable for Louisiana sales tax. On appeal, the First Circuit affirmed, applying Louisiana law and finding “no evidence in the record that Mr. Thomas committed fraud.” Thomas v. Bridges, 12-1439, p. 6 (LaApp. 1 Cir. 6/28/13), 120 So.3d 338, 342. We affirm.

STANDARD OF REVIEW

Under statute, the district courts have exclusive jurisdiction to review the decisions of the Board and to modify or reverse a decision if it “is not in accordance with the law.” La.Rev.Stat. § 47:1435. This provision has been interpreted to mean the “Board of Tax Appeals’s findings of fact should be accepted where there is substantial evidence in the record to support them and should not be set aside unless they are manifestly erroneous in light of the entire record.” See International Paper, Inc. v. Bridges, 07-1151, pp. 9-10 (La.1/16/08), 972 So.2d 1121, 1127-8. However, in this case, the Board made no findings of fact other than to uphold the Department’s assessment of sales tax against Thomas. Based on the transcript of the hearing before the Board, we may imply this is | (¡because the Board agreed with the Department’s argument the veil of the Montana LLC, Angels Rocks, should be pierced. However, as shown below, the Board erred in its analysis by applying Louisiana law with respect to the veil-piercing of the Montana LLC. This was legal error. Where legal errors have interdicted the fact-finding process, the appellate court should, if it can, make its own independent de novo review of the record. Wegener v. Lafayette Ins. Co., 10-0810, p. 19 (La.3/15/11), 60 So.3d 1220; Ferrell v. Fireman’s Fund Ins. Co., 94-1252, p. 4 (La.2/20/95), 650 So.2d 742, 745; Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707, 708 (La.1980). Finding legal error, we will analyze this case under a de novo review.

DISCUSSION

The purpose of forming a limited liability company, or “LLC,” is evident in its very name: to protect its members from personal liability for the debts of the LLC, except in limited circumstances. Ignoring this most basic principle of business formation, the Department pursued Thomas personally before ever attempting to assess taxes against Angels Rocks, LLC. The Department’s first correspondence on the record was its proposed assessment of tax addressed to Thomas individually. The Department continued to pursue Thomas even though its January 27, 2010 letter admitted the RV was “purchased in the name of Angels Rocks, LLC on 12/14/2007.”

In its February 4, 2010 letter to Thomas, the Department wrote it could not determine the “business purpose” of Angels Rocks, LLC, because the only documentation it had been provided was “a certificate of title and a bill of sale.” Yet, the bill of sale reflects the RV was sold to Angels Rocks, LLC. Likewise, the certificate of title was issued by the State of Montana to Angels Rocks, LLC. Both documents clearly demonstrate Angels Rocks, LLC, was the proper party against 17whom any tax should be assessed. The Department’s January 27, 2010 letter also suggests Thomas may be personally liable because he signed the purchase agreement individually in the signature block designated “buyer.” However, it is the members of LLCs who must act on behalf of the LLC; the LLC cannot provide a signature on its own. Angels Rocks, LLC, is listed clearly as “buyer” at the top of the executed purchase agreement; therefore, the intent of the document is unambiguous.

Although Thomas should have been as forthcoming as possible in providing documentation to the Department, the requested documentation showing the location of the business situs and the places of use and storage of the RV are relevant for determining the tax liability of Angels Rocks, LLC, not its members. Likewise, any burden to show Angels Rocks, LLC, was a “functioning business” as (an undefined term used by the Department in its February 4, 2010 letter to Thomas) would be on Angels Rocks, LLC, not its members. The record does not show the Department established any valid factual or legal basis for assessing Thomas individually and in derogation of the protections afforded to members of LLCs. Yet, if Thomas had not appealed his assessment to the Board, the Department would have pursued collection of more than $47,000 in taxes without stating any valid basis. Indeed, as shown below, the Department has established no valid legal basis for attempting to assess Thomas individually.

|sWe find the Department clearly erred in assessing Thomas rather than Angels Rocks, LLC, ignoring the separate existence of the LLC before establishing any valid basis for doing so. It was only when Thomas petitioned the Board asserting he was not personally liable due to the existence of the LLC that the Department contended the veil of the Montana LLC should be pierced. However, this after-the-fact appraisal the veil should be pierced does not change the fact the existence of Angels Rocks, a validly formed Montana LLC, was ignored in derogation of Louisiana’s statutory protections for LLCs, Louisiana’s obligation under the United States constitution to provide full faith and credit to the laws of Montana, and Thomas’s constitutional right to due process.

Instead of pursuing Thomas individually, the Department should have first assessed Angels Rocks, LLC. La.Rev. Stat. § 12:1342 states the “laws of the state or other jurisdiction under which a foreign limited liability company is organized shall govern its organization, its internal affairs, and the liability of its managers and members that arise solely out of their positions as managers and members.” Therefore, questions of whether a LLC has been validly formed and the extent of personal liability of members are governed by the law of the state in which the LLC is organized. Accordingly, the Department would have to look to Montana law in order to find personal liability on the part of Thomas for tax due on the sale of the RV to Angels Rocks, LLC. At no time did the Department apply Montana law in determining whether or not the veil of Angel Rocks could be pierced. Other than to find Angels Rocks, LLC, would have been the proper 19party against whom to assess any applicable tax, we decline to speculate how the legal error of neglecting to examine Montana law may have interdicted the Department’s, the Board’s, and the lower courts’ fact-finding processes.

If the Department had found no personal liability existed on the basis of Montana law, it could still have assessed Thomas individually upon establishing fraud under La.Rev.Stat. § 12:1320(D), which states: “Nothing in this Chapter [on limited liability companies] shall be construed as being in derogation of any rights which any person may by law have against a member, manager, employee, or agent of a limited liability company because of any fraud practiced upon him by such person.... ” (emphasis added).

If the Department had established evidence of fraud, it could have pursued Thomas individually under this provision. However, as the lower courts properly found, there is no evidence demonstrating Thomas committed fraud. Although the Department failed to state any factual finding of fraudulent activity whatsoever before issuing an assessment to Thomas, the record reflects the Department had reviewed copies of the bill of sale, purchase agreement, and certificate of title by the date of the assessment’s issuance. These documents all indicated unambiguously the RV was owned by Angels Rocks, a Montana LLC.

Throughout its investigation and assessment, the Department was well aware Montana LLCs are commonly formed for the sole purpose of avoiding sales tax. | mHowever, taking actions to avoid sales tax does not constitute fraud. Although tax evasion is illegal, tax avoidance is not. As the Court of Appeal aptly acknowledged:

We note that “tax avoidance” is defined as “[t]he act of taking advantage of legally available tax-planning opportunities in order to minimize one’s tax liability.” Black’s Law Dictionary 1599 (9th ed. 2009) (emphasis added). Contrast “tax evasion,” which is “[t]he willful attempt to defeat or circumvent the tax law in order to illegally reduce one’s tax liability.” Black’s Law Dictionary 1599 (9th ed. 2009)(emphasis added).

Thomas v. Bridges, 2012-1439 (La.App. 1 Cir. 6/28/13), 120 So.3d 338, 342.

Use of particular business entities to avoid taxes and other liabilities, far from being fraudulent, is a common and legal practice. “The legal right of a taxpayer to decrease the amount of what would otherwise be his taxes, or altogether avoid them by means which the law permits, cannot be doubted.” Grego'ry v. Hel-vering, 293 U.S. 465, 467, 55 S.Ct. 266, 79 L.Ed. 596 (1935).

Under both Louisiana and Montana law, LLCs may be formed for “any lawful purpose.” With limited exceptions for insurance and banking, neither state’s law places any further constraints on permissible purposes for forming an LLC. A finding that the formation of an LLC solely for tax avoidance and not for any “legitimate” purpose constitutes fraud would have destabilizing implications for Louisiana law. For example, duck hunters who incorporate solely in order to limit liability of individuals arising out of a duck lease could be said to be engaging in fraudulent activity by incorporating without any “legitimate” purpose. Similarly, shareholders of a Delaware corporation with its offices in Louisiana could find themselves personally liable for the corporation’s debts, since the corporation | n arguably has no “legitimate” purpose for incorporating in Delaware and is thereby committing fraud.

While we are sympathetic to policy arguments raised by the Department and amici, we suggest pursuing legislation rather than allegations of fraud is the appropriate way to remedy these policy concerns. As the Board’s Chairman Theriot suggested at Thomas’s hearing, finding a legal loophole does not, by itself, constitute fraud. Rather, fraud is a serious accusation of intentional deceit which, in most contexts, merits award of additional penalties or punitive damages.

Thomas’s assertion before the Department, the Board, the District Court, the Court of Appeal, and now this Court have been steadfast: if any sales or use tax on the RV is due to the Department, it is the liability of Angels Rocks, LLC. The parties do not dispute Angels Rocks, LLC, was validly formed under the laws of Montana; therefore, its existence and the liability shield it provides its members should not be cast aside without first establishing a valid legal basis for doing so.

Not only were the Department’s theories for personally assessing Thomas not communicated to Thomas before issuance of the assessment, but they have also impermissibly evolved after-the-fact throughout the appeal process. Before the District Court and the Court of Appeal, the Department relied wholly on fraud and the law on veil-piercing in Louisiana as the basis for finding Thomas personally liable for Louisiana sales tax. However, the Department’s brief to this Court urges us to consider two additional theories of liability for Thomas: the “substance over form” doctrine and the “economic substance” doctrine. Generally, appellate courts 112will not consider issues raised for the first time on appeal.

Therefore, we decline to examine these jurisprudential doctrines.

Alternatively, the Department suggests Thomas is personally liable because the sale was first perfected via the December 8th purchase agreement drawn up and executed by Dixie RV, on the basis of which Thomas made a $1,000 deposit. However, this argument was also not raised before the District Court or the Court of Appeal. Therefore, this argument is also not properly before us, and we decline to examine it.

Finally, the Department asserts the lower courts incorrectly failed to dismiss Thomas’s suit because he neglected to follow the procedure outlined for judicial review in La.Rev.Stat. § 47:1434. This statute requires the petitioner appealing a Board decision to “post bond, with surety approved by the board ... [as] a condition precedent to the filing of any petition for review in any district court.” Id. The Department contends Thomas did not post proper bond for the appeal with the Board when he provided his notice to petition for judicial review. Rather, Thomas filed an “Irrevocable Standby Letter of Credit” on October 27, 2010. The Department asserts this letter does not fulfill the statutory bond requirement, and, furthermore, was filed beyond the thirty day period provided in LaRev.Stat. § 47:1434.

11sHowever, Thomas alleges he relied on statements made by the Board in making his decision to acquire a letter, of credit. Kirk Boe, an officer at the bank which issued the letter of credit, as well as, Kim Pinegar, the legal assistant for Thomas’s attorney, both testified they had communications with Marie Williams, Secretary-Clerk of the Board, in which Williams indicated a letter of credit would be acceptable and need not be filed before October 18, 2010, as long as the notice of intent to appeal was filed by that date. This testimony was not disputed by the Board; therefore, the Board effectively waived strict adherence to the procedures outlined in La.Rev.Stat. § 47:1434 through its representations to Thomas. Furthermore, we note appeals are favored and should be maintained whenever possible. Therefore, we find no error in the lower courts’ judgments in declining to dismiss the appeal.

DECREE

For the foregoing reasons, the rulings of the lower courts are hereby affirmed.

AFFIRMED.

VICTORY, Justice, dissents.

GUIDRY, Justice, concurs and assigns additional reasons.

CLARK, Justice, concurs with reasons.

GUIDRY, Justice,

concurs and assigns additional reasons.

hWhile I concur in the majority analysis and result, I write additionally to encourage the legislature to revisit this area of the law on foreign limited liability corporations formed solely for the purpose of sales tax avoidance on purchases made in Louisiana. As the facts of this case suggest, the law may be susceptible to abuse.

CLARK, Justice,

concurs and assigns reasons.

| because I see no actual violation of the letter of the law in this matter, I concur with the result reached by the majority. However, I am concerned that the spirit of the law is not being protected. The potential for abuse in allowing the creation of sham entities to avoid the payment of taxes has policy implications that are worthy of the legislature’s attention.

      . Thomas did not, however, execute the December 8th agreement. Rather, the "buyer" signature block is left blank.

      . The record contains a copy of the Articles of Organization stamped "filed" on December 11, 2007, and a Certificate of Existence signed by the Secretary of State of Montana on April 28, 2010, verifying the creation of Angels Rocks, LLC, and certifying the LLC is in good standing under the laws of the State of Montana.

      . Taxes on vehicles are governed by La.Rev. Stat. § 47:302(A) and § 47:303(B). La.Rev. Stat. § 47:302(A) provides, in pertinent part:
      A. There is hereby levied a tax upon the sale at retail, the use ... of each item or article of tangible personal property, as defined herein, the levy of said tax to be as follows:
      (1) At the rate of two per centum (2%) of the sales price of each item or article of tangible personal property when sold at retail in this state; the tax to be computed on gross sales for the purpose of remitting the amount of tax due the state, and to include each and every retail sale.
      (2) At the rate of two per centum (2%) of the cost price of each item or article of tangible personal property when the same is not sold but is used, consumed, distributed, or stored for use or consumption in this state; provided there shall be no duplication of the tax.
      La.Rev.Stat. § 47:303(B) provides, in pertinent part:
      B. Collection of tax on vehicles. The tax imposed by R.S. 47:302(A) on the sale or use of any motor vehicle ... or any other vehicle subject to the vehicle registration license tax shall be collected as provided in this Subsection.
      (1) The tax levied by R.S. 47:302(A) on any such vehicle shall be paid to the vehicle commissioner as the agent of the collector of revenue at the time of application for a certificate of title or vehicle registration license and such tax shall be administered and collected by the vehicle commissioner in compliance with rules and regulations issued by the collector of revenue and in compliance with the law as construed by the collector of revenue. No certificate of title or vehicle registration license shall be issued until this tax has been paid. The collector of revenue shall be the only proper party to defend or to institute any legal action involving the tax imposed ...
      (a) The tax levied by R.S. 47:302(A)(1) on the sale of any such vehicle shall be due at the time of registration or any transfer of registration as required by the Vehicle Registration License Tax Law (R.S. 47:451 et seq.) ...
      (b) The tax levied by R.S. 47:302(A)(2) on the use of any such vehicle in this state shall be due at the time first registration in this state is required by the Vehicle Registration License Tax Law (R.S. 47:451 et seq.) ...

      . Thomas’s statement is relevant to the assessment of use tax. Even if sales tax is not owed on a vehicle, use tax will generally be owed if the vehicle is used or stored in Louisiana. To what extent Mississippi's tax law may be applicable in this case is not an issue before this Court.

      . Thomas uses Lane as his first name on some of the documents.

      . This standard of review is unique to the Board, which is generally exempted, along with the Department, from the provisions of the Louisiana Administrative Procedure Act. La.Rev.Stat. § 49:967(A).

      . The Department also suggests the appearance of the signature of Connie Thomas, Thomas's wife, indicates Thomas and his wife were the buyers. However, this is of no moment. Thomas's signature as the sole member of the LLC with "Angels Rocks" listed as buyer is sufficient to show the intent of the document. Furthermore, Mrs. Thomas would have an interest in any property of the LLC under Louisiana’s community property regime.

      . La.Rev.Stat. § 47:1543 authorizes the Department to examine the "... accounts and documents of any individual ... in so far as said ... accounts and documents relate to, bear on, associate with, identify, clarify or disclose, the liability of any person or group made liable for any tax, excise, permit, or license under any Chapter of this Sub-title or assist in the enforcement or collection of any such liability. Every individual ... shall exhibit ... the pertinent ... accounts and documents and to [sic] facilitate any such examination and investigation so far as it may be in his or their power so to do.”

      .The Louisiana Civil Treatise uses veil-piercing as an illustration of when La.Rev.Stat. § 12:1320(D) is applicable. “Thus, for example, if the state in which the foreign LLC was formed has a standard for piercing the veil of an LLC that differs from the veil-piercing standards under Louisiana law, the rules of the foreign jurisdiction will apply to the foreign LLC.” 9 La. Civ. L. Treatise, LLC & Partnership Bus. & Tax Plan § 1.71 (3d ed.).

      . The issue of application of Montana’s veil-piercing law was not raised by either party and was not discussed by the Board or the lower courts.

      . "Property transferred to or otherwise acquired by a limited liability company becomes the property of the limited liability company. A member has no interest in specific limited liability company property.” Mont.Code Ann. § 35-8-701(1) (2013). "Except as provided in 39-51-1105 and subsection (3) of this section, a person who is a member or manager, or both, of a limited liability company is not liable, solely by reason of being a member or manager, or both, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation, or liability of the limited liability company, whether arising in contract, tort, or otherwise or for the acts or omissions of any other member, manager, agent, or employee of the limited liability company.” Mont.Code Ann. § 35-8-304(1) (§ 39-51-1105 relates to payment of certain Montana unemployment insurance and employment taxes, and subsection (3) refers to instances where members assume the LLC's debts in writing).

      . Mr. Pauver, a tax auditor who worked with the Department on Thomas’s case, testified he had been assigned to specifically research tax issues related to the purchase of RVs by Montana LLCs.

      . La.Rev.Stat. § 12:1302(A) states "A limited liability company may be organized under this Chapter and may conduct business for any lawful purpose, unless a more limited purpose is stated in its articles of organization. A limited liability company shall not be formed for the purpose of insurance underwriting in all of its several forms.” A Montana LLC may be formed "any lawful purpose except for the purpose of banking or insurance” Mont.Code Ann. § 35-8-106(2).

      . Chairman Theriot: "So finding a legal loophole is — is—you need more than that to say that’s fraud.”

      . See, e.g., La.Rev.Stat. § 47:1604 (allowing for a 50% penalty of the tax found to be due, in addition to other applicable penalties, when an individual files a report "where the circumstances indicate the taxpayer had the intent to defraud the State of Louisiana”); La. Civ.Code art.1958 (stating where a contract is rescinded because of fraud, "The party against whom rescission is granted because of fraud is liable for damages and attorney fees.”).

        .See, e.g., Boudreaux v. State through Dept, of Transp. & Dev., 01-1329, p. 2 (La.2/26/02), 815 So.2d 7, 8-9; Coats v. American Tel. & Tel. Co., 95-2670, p. 6 (La. 10/25/96), 681 So.2d 1243, 1246 n. 5; Segura v. Frank, 93-1271, p. 15 (La. 1/12/94), 630 So.2d 714, 725; Krauss Co. v. Develle, 236 La. 1072, 110 So.2d 104, 105-06 (1959); Fried v. Bradley, 219 La. 59, 87, 52 So.2d 247, 257 (1950); Weingart v. Delgado, 204 La. 752, 16 So.2d 254, 256 (1943); Gaines v. Crichton, 187 La. 345, 174 So. 666, 668 (1937); Succession of Quinn, 183 La. 727, 164 So. 781, 784 (1935).

      . See supra note 16.

      . The Department also asserts Thomas failed to attach an order to his petition and to assign specific errors as required by La.Rev.Stat. § 47:1434. However, although La.Rev.Stat. § 47:1434 mentions an order, it does not specifically require one. Furthermore, we agree with the Court of Appeal's finding paragraphs 5-11 of Thomas's original petition specifically allege errors made in the Department’s assessment.


source: Caselaw Access Project

author:
GUIDRY, Justice.
     KNOLL, Justice,

license: Public Domain

text:
    QUALITY ENVIRONMENTAL PROCESSES, INC., Michael X. St. Martin and Virginia Rayne St. Martin v. I.P. PETROLEUM COMPANY, INC., International Paper Company, Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P., and John Y. Pearce.
    Nos. 2013-C-1582, 2013-C-1588, 2013-C-1703.
    Supreme Court of Louisiana.
    May 7, 2014.
    Rehearing Denied July 1, 2014.

      Harry T. Lemmon, New Orleans, LA, Saint Martin & Bourque, Michael X. St. Martin, Christopher John St. Martin, Hou-ma, LA, The Gray Firm, APLC, A.J. Gray, III, Lake Charles, LA, for Applicant (No. 2013-C-1582).
    Fishman Haygood Phelps Walmsley Willis & Swanson, Brent Bennett Barri-ere, Mayhall & Blaize, LLC, Jamie Scott Manuel, Montgomery Barnett, LLP, John Y. Pearce, Phelps Dunbar, LLP, Harry Alston Johnson, III, New Orleans, LA, Taylor, Porter, Brooks & Phillips, LLP, William Shelby McKenzie, Amy Collier Lambert, Shreveport, LA, for Respondent (No. 2013-C-1582).
    Montgomery Barnett, LLP, John Y. Pearce, New Orleans, LA, Taylor, Porter, Brooks & Phillips, LLP, William Shelby
    McKenzie, Amy Collier Lambert, Baton Rouge, LA, for Applicant (No. 2013-C-1588).
    Harry T. Lemmon, Fishman Haygood Phelps Walmsley Willis & Swanson, Brent Bennett Barriere, Mayhall & Blaize, LLC, Jamie Scott Manuel, Phelps Dunbar, LLP, Harry Alston Johnston, III, New Orleans, LA, Saint Martin & Bourque, Michael X. St. Martin, Christopher John St. Martin, Houma, LA, The Gray Firm, APLC, A.J. Gray, III, Lake Charles, LA, for Respondent (No. 2013-C-1588).
    Fishman Haygood Phelps Walmsley Willis & Swanson, Brent Bennett Barriere, Mayhall & Blaize, LLC, Jamie Scott Manuel, Phelps Dunbar, LLP, Harry Alston Johnson, III, New Orleans, LA, for Applicant (No. 2013-C-1703).
    Harry T. Lemmon, New Orleans, LA, Saint Martin & Bourque, Michael X. St. Martin, Christopher John St. Martin, Hou-ma, LA, Taylor, Porter, Brooks & Phillips, LLP, William Shelby McKenzie, Amy Collier Lambert, Baton Rouge, LA, The Gray Firm, APLC, A.J. Gray, III, Lake Charles, LA, for Respondent (No. 2013-C-1703).
   GUIDRY, Justice.

_[¿This case involves mineral rights and royalties associated with a production well located on a certain tract of land owned by the plaintiffs in Terrebonne Parish. Two conveyances are of importance to the resolution of this case: a 1966 mineral deed and a 1992 cash sale. The plaintiffs asserted the 1966 mineral deed did not create a valid mineral servitude and, consequently, sought to be declared as owning 100% of the mineral rights since then-purchase of the subject property by act of cash sale in 1992, and demanded to be awarded the royalties due from June 29, 1997, until the well stopped producing sometime in 2001 or 2002. They also sought penalties, attorney fees, and interest. The plaintiffs further asserted a violation of the Louisiana Unfair Trade Practices Act based on the allegation that various acts of the- defendants amounted to a tortious conspiracy to deprive the |2plaintiffs of the royalties due them. The trial court ruled in the plaintiffs’ favor, finding the 1966 mineral deed did not create a valid servitude over the subject property, the plaintiffs were the owners of the mineral rights as of the 1992 purchase, and the defendants’ conduct amounted to unfair trade practices. The appellate court reversed and vacated the judgment, finding that the 1966 mineral deed had created a valid mineral servitude and that the 1992 act of cash sale had placed the plaintiffs on notice that the mineral rights to the property had been previously conveyed. The appellate court then remanded the case for consideration of the remaining issues associated with any rights the plaintiffs may have acquired from settlements with predecessor mineral interest owners in 2001 and 2005.

For the reasons set forth below, we affirm the court of appeal’s judgment. We hold that the 1966 mineral deed was sufficiently specific to identify the property to be conveyed and, thus, to create a valid mineral servitude and to place third parties on notice of the existence of that servitude. We thus conclude the plaintiffs did not acquire the mineral rights to the subject property via the 1992 warranty deed. We further find that the actions of the defendants did not rise to the level of an unfair trade practice within the meaning of the act. We also affirm the remand of the case to the trial court for consideration of any royalty payment issues stemming from the after-acquired rights, if any, arising out of the 2001 and 2005 settlements.

FACTS AND PROCEDURAL HISTORY The subject property, hereinafter the St. Martin Property, consists of certain sections and portions thereof located in Townships 17 and 18 South, Range 16 East, all in Terrebonne Parish. The tract was acquired by Michael X. St. Martin and Virginia Rayne St. Martin by act of cash sale dated June 23, 1992. The vendor |3was Contran Realty Corporation, which had acquired the property from Southdown, Inc., in 1987. In pertinent part, the 1992 act of cash sale provided as follows:

VENDOR and VENDEE acknowledge, with the exception of [the] tract more particularly described on Exhibit “B”, and without intending to interrupt any prescriptive periods which may presently be accruing, that the oil, gas and other minerals lying in, on or under the subject property have been previously conveyed, and that the existence of mineral servitudes shall not constitute a failure of title under the limited warranty set forth hereinabove.
VENDOR specifically reserves all of the oil, gas and other minerals situated on or under [the] tract described on Exhibit “B”....
VENDOR and VENDEE agree that the act of sale herein is made subject to all such servitudes and/or pipeline rights of way, canal servitudes, and other noncan-celable surface leases, as are in actual existence, or of record, including without limitation, the following, to-wit:
(a) Canal Use Agreement dated January 26, 1970, by and between South-down, Inc. and Union Oil Company of California, recorded in COB 489, Folio 685, under Entry No. 376196, records of Terrebonne Parish, Louisiana.
(b) Surface Lease dated April 6, 1983, by and between Contran Corporation and The Superior Oil Company, recorded in COB 919, Eolio 627, under Entry No. 703480, records of Terrebonne Parish, Louisiana.

In pertinent part, Exhibit “B” to the 1992 cash sale stated:

A tract of land comprising 105 acres, more or less, being the Southwestern-most 105 acres more or less in the SW/4 of Section 8, T18S-R16E, Terrebonne Parish, Louisiana, a plat of which is attached as Exhibit “D” to that certain Mineral Conveyance from Southdown, Inc. to Southdown Exploration, Inc., dated August 31, 1966, recorded under Entry No. 315794, Records of Terrebonne Parish, Louisiana.

On August 15, 1994, the St. Martins conveyed a 10% mineral interest in their property to Quality Environmental Processes, Inc. (hereinafter “Quality”), and then on March 1, 2001, another 20%. Although the St. Martins and Quality, | hereinafter the plaintiffs, acknowledge that the 1992 cash sale states “that the oil, gas and other minerals lying in, on or under the subject property have been previously conveyed,” they claim there was no valid mineral servitude encumbering the property at the time of the 1992 purchase and, thus, they acquired 100% of the mineral rights in the subject property as' a result of the 1992 cash sale.

The validity of their claim, all parties agree, turns on whether a 1966 mineral deed, also referred to as the 1966 agreement, purporting to identify and convey a mineral servitude from the then owner of the property, Southdown, Inc., created a valid mineral servitude. That 1966 mineral deed was created by instrument dated August 31, 1966, recorded at COB 433, Folio 128 of the records of Terrebonne Parish, in which Southdown, Inc. conveyed to Southdown Exploration, Inc. all of its rights title and interest in and to the oil, gas and other minerals located in, on or under the lands- outlined in blue on the plats marked Exhibits “A” through “H” and attached to the. 1966 agreement. These plats marked as Exhibits “A” through “H” to the 1966 agreement covered eight separate, non-contiguous areas located in four different parishes. As previously noted, on each of the plats attached to the 1966 agreement is an area outlined in blue reflecting the boundaries of the particular “Productive Area” within which Southdown, Inc. was conveying a mineral servitude to Southdown Exploration, Inc.

Exhibit “I” to the 1966 agreement lists and describes the “Known Productive Sands” within the various tracts identified in the exhibits. These sands are described by depth and geographical location, or as defined by Louisiana Department of Conservation orders.

The 1966 mineral deed provides in pertinent part as follows:

| .^SOUTHDOWN, INC., a Louisiana corporation, hereinafter referred to- as “Grantor”, does hereby grant, bargain, sell, convey, set over and deliver unto SOUTHDOWN EXPLORATION, INC., a Louisiana corporation, hereinafter referred to as “Grantee”, all of Grantor’s right, title and interest in and to the oil, gas and other minerals located in, on or under the lands outlined in blue on the plats marked Exhibits “A” through “H”, which said Exhibits are attached hereto and made a part hereof in full by reference, covering lands located in St. James, Terrebonne, Ascension and La-fourche Parishes, Louisiana. The lands outlined in blue on Exhibits “A” through “H” are herein sometimes referred to as “Productive Area”.
Grantor and Grantee herein agree to execute such further instruments as may be necessary or desirable to effect the conveyance set out herein-above; in this connection, the parties agree forthwith to cause an accurate survey to be made of each of the areas outlined in blue, and the detailed survey plats, when approved by the parties and filed of record, shall be substituted for Exhibits “A” through “H” and shall constitute a part of this agreement. It is agreed particularly that if the area outlined in blue does not include all existing units or acreage assigned to producing wells within the Productive Area, the conveyance will be ...[ ] dated retroactively to include such additional acreage.
On the plats annexed hereto to Exhibits “A” through “C”, there is outlined in red an additional area adjacent to each of the Productive Areas shown on said plats. The lands lying between the limits of the Productive Area as outlined in blue and the red outline in each instance are hereinafter referred to as the “Protective Area”. The Protective Area shall also be surveyed forthwith; and the detailed survey plats, when approved by the parties and filed of record, shall also be substituted for Exhibits “A” through “G” and shall constitute a part of this agreement.
For all purposes of this Agreement, the sands known to be productive or capable of production in the Productive Area, which may be subject to the additional assignments herein provided for relating to the Protective Area are agreed by the parties to be described and fully identified on the descriptive list thereof attached hereto and expressly made a part hereof as Exhibit “I”, hereinafter referred to collectively as “Known Productive Sands” or individually as “Known Productive Sand”.
As an essential and integral part of the consideration paid for this conveyance, Grantor binds and obligates itself to convey to Grantee, from time to time as required, all of its right title and interest in and to the oil, gas and other minerals in each Known Productive Sand when and if such sand is established to be productive or capable of production in the Protective Area....
| „This Agreement is herein specifically made subject to the terms and conditions of the present Oil, Gas and Mineral Leases covering and affecting the Productive Area, together with all recorded agreements, instruments or documents presently in force and effect covering and affecting the said leases and presently binding upon Grantor.
This Agreement and all rights, interests and titles of the parties hereto shall be binding upon and inure to the benefit of the respective parties, their heirs, successors and assigns.

[Emphasis added.]

Although the 1966 agreement required subsequent “accurate” surveys to be made and thereafter “substituted for Exhibits ‘A’ through ‘H,’ ” the parties to the agreement did not do so.

The relevant plat to this litigation is the plat attached to the 1966 agreement as Exhibit “D”, which is a copy of a Tobin map labeled “Lake Hatch Field Sunrise Field Terrebonne Parish, LA.” The designation “R16E” appears in large type in the lower left-hand corner, which all surveyor experts agreed corresponded to “Range 16 East.” Exhibit “D” is gridded in numbered sections, and, as the court of appeal noted, various topographical features are depicted: “Lake Hatch” is depicted as falling at the intersection of Sections 11, 12, and 14; the “Intracoastal Waterway” is shown as traversing Sections 1-3; the “Minor Canal” is shown as | descending through Sections 2, 12, and 13; and the names of various landowners are inscribed on tracts throughout the map. The parties stipulated to the introduction of the testimony of Keith Hebert, accepted as an expert petroleum landman, who testified that there had been continuous and uninterrupted production in the “Productive Area” of the Lake Hatch Sunrise Field delineated on Exhibit “D” from 1965 until 2002, such that the mineral rights had not prescribed. See La.Rev. Stat. 31:27 (“A mineral servitude is extinguished by ... prescription resulting from nonuse for ten years.... ”).

In 1970, Southdown Exploration conveyed 40% of the mineral rights to Energy Development Corporation (hereinafter “EDC”), which was eventually succeeded by Noble Energy, Inc. The remaining undivided 60% interest remained with South-down Exploration, whose successor was Phillips Petroleum Company (hereinafter, Phillips).

In 1987, Southdown Inc. conveyed the land to Contran Realty Corporation (hereinafter “Contran”) in 1987. As described above, Contran, by the 1992 act of cash sale, conveyed the surface rights in the property to the St. Martins.

In the meantime, IP Petroleum Company (hereinafter “IP Petroleum”) had acquired a farm-out interest under a 1954 lease originally granted to The Superior Oil Company (later succeeded by Mobil Exploration & Production U.S. Inc.). In 1994, Mobil Exploration granted IP Petroleum and Houston Energy and Development, Inc. the right to drill an exploratory well affecting parts of the property. IP Petroleum also owned various working interests pursuant to mineral leases with EDC. Additionally, IP Petroleum owned mineral rights assigned to it by Phillips.

In 1994, IP Petroleum successfully drilled and produced the IP Pet. PPCO No. 1 well on the St. Martin Property. According to the plaintiffs, they ^immediately began receiving all royalties from the production of that well through 1997 when IP Petroleum halted payments. According to IP Petroleum, the royalties from the well were paid to the owners of the 1966 mineral servitude, namely Noble Energy (as EDO’s successor) and Phillips. Pure Resources purchased IP Petroleum’s interest in the well in April 2001. Pure Resources recompleted the well, and produced minerals therefrom until the well was plugged and abandoned in September 2002.

In 2000, the plaintiffs (the St. Martins and Quality) filed suit for unpaid royalties against IP Petroleum, Noble Energy, Phillips, and Mobil Exploration, questioning the validity of the 1966 mineral deed based on the sufficiency of the blue line description on the attached Tobin map in Exhibit “D” (this suit is referred to by the parties as “Blue Line I”). The plaintiffs sought inter alia a judgment recognizing their ownership of the minerals on the St. Martin Property. By this time some $817,464.29 had been paid by IP Petroleum in royalties to Noble Energy and Phillips between June 29, 1997, and April 2001, while the remaining $106,977.66 had been placed in escrow. The plaintiffs alleged the 1966 mineral deed was insufficient to create a mineral servitude and to put them on notice that mineral interests in the land they acquired in 1992 were outstanding in other persons. Mobil Exploration was dismissed from the suit. The plaintiffs settled their claims with Phillips in 2001 and with Noble Energy in 2005. In the respective settlement agreements, the plaintiffs obtained all of the mineral interests in the St. Martin Property that had belonged to both Phillips and Noble Energy, the so-called after-acquired mineral rights. IP Petroleum remained as the sole defendant. In 2006, the plaintiffs unsuccessfully attempted to amend their petition in Blue Line I to add as a defendant International Paper Company, the parent 19company of IP Petroleum, and to assert a claim for tortious conspiracy against those defendants, as well as the attorneys for IP Petroleum, John Y. Pearce and the law firm of Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P. (hereinafter “Montgomery Barnett”).

In 2006, subsequent to the trial court’s denial of the plaintiffs’ motion to amend their pleadings in Blue Line 1, the plaintiffs filed the instant suit against IP Petroleum and International Paper (collectively “the IP defendants”), seeking to be declared the owner of the mineral rights, again asserting a claim for unpaid royalties from 1997. In the instant suit, the plaintiffs also sought damages under the Louisiana Unfair Trade Practices Act (hereinafter “LUTPA”) against the IP defendants and IP Petroleum’s attorneys, Mr. Pearce and the law firm of Montgomery Barnett (collectively, the “legal defendants”). The instant suit was assigned to a different division of the district court than Blue Line I.

Following a five-day trial, the trial court held the St. Martins owned 100% of the minerals relating to the IP Pet. PPCO Well No. 1 from the date of the 1992 cash sale and were entitled to payment of all royalties. The court found that the 1966 deed did not contain an accurate survey or map, nor any measurements, dimensions, bearings, angles, or distances which would accurately describe the various mineral interests listed and conveyed therein which would sufficiently put a third party, such as the plaintiffs, on notice and, thus, did not create a mineral servitude relative to St. Martin Property. Based on these findings, the trial court did not address the effect on mineral ownership of the 2001 and 2005 settlements |10with Noble and Phillips, respectively, which the plaintiffs urged supported their claim for production royalties paid by IP from 1997 to 2001.

The trial court further found that despite demand by the plaintiffs, the IP-defendants, without legal justification or reasonable grounds, willfully and deliberately refused to pay mineral royalties in the total amount of $924,441.95 to the plaintiffs. The trial court found that the IP-defendants’ actions were in violation of La. R.S. 31:137, et seq., and were willful, deliberate, unjustified, and unreasonable for which the plaintiffs were also entitled to recover damages equal to double the amount of royalties, interest from July 1, 1997 (the date royalties were due), and reasonable attorney fees (25% of royalties, penalties, and interest). The trial court also found that the defendants’ conduct amounted to a violation of LUTPA, as discussed in more detail below.

Accordingly, judgment was rendered in favor of the plaintiffs, decreeing 100% ownership of the mineral rights in the plaintiffs, and ordering the IP defendants to pay a total of $6,725,375.98 in unpaid royalties, penalties (twice the royalties due), interest on unpaid royalties and penalties from July 1, 1997, through October 28, 2011, and 25% attorney fees. As to the LUTPA claim, the judgment ordered the IP-defendants and the legal defendants to pay a total of $4,549,227.91 in penalties (triple unpaid royalties), interest on treble damages from date of demand, and 25% attorney fees.

On appeal, the court of appeal found that the 1992 cash sale to the St. Martins did not transfer any mineral rights in the property sold, as the parties thereto expressly stated that no mineral rights in the property were being conveyed; therefore, the St. Martins had actual notice that the mineral rights were owned by some other person(s). . The appellate court further concluded that the public records were, at all pertinent times, sufficient to give the plaintiffs notice that they did not |nobtain ownership of any mineral rights by virtue of the 1992 cash sale, as the 1966 conveyance of mineral rights and subsequent transfers to successors-in-title were sufficient notice of such title in other persons. The court reasoned that the 1966 mineral deed, even though it did not contain a complete written description of the property, was nevertheless susceptible of conveying property, because the servitude could be ascertained with certainty with the aid of such extrinsic evidence as is admissible under the rules of evidence.

The court of appeal reversed the trial court’s holding that the St. Martins had obtained 100% ownership rights in 1992, encompassing the mineral rights at issue, and in awarding damages, penalties, interest, attorney fees, and costs to Ps in this matter. Accordingly, the court vacated the trial court’s judgment. Because the trial court had not considered the plaintiffs’ claims in connection with the mineral interest obtained by virtue of their 2001 and 2005 settlements with Phillips and Noble, the court remanded the matter stating:

Because the ruling by the trial court obviated the need for the trial court to render judgment as to the plaintiffs’ claims based on after-acquired titles to the mineral rights at issue (i.e., by subsequently-acquired mineral deed(s) and/or settlement agreement(s) by and/or with Noble Energy, Inc. and/or Phillips Petroleum Company), we remand for a ruling on these claims by the trial court.

Urging that the court of appeal’s remand order did not remand any LUTPA claim or any claim against the legal defendants, both the IP defendants and the legal defendants unsuccessfully sought rehearing for the limited purpose of requesting the court of appeal to dismiss the plaintiffs’ LUTPA claims against all defendants. The plaintiffs, the IP defendants, and the legal defendants each filed writ applications in this court seeking review. We granted all three writ applications to determine whether the lower courts properly applied the law. Quality Environmental Processes, Inc. v. IP Petroleum Company, Inc., 13-1582, 13-1588, 13-1703 (La.12/06/13), 129 So.3d 524.

|12THE 1966 MINERAL DEED

As noted above, all parties agree that this case turns on whether the 1966 mineral deed validly created and conveyed a mineral servitude encumbering the St. Martin Property. There can be no doubt from the express terms of the 1966 agreement itself that the parties thereto intended to grant a mineral servitude as outlined by the blue line on the Tobin map attached as Exhibit “D” for the Lake Hatch-Sunrise Field in Terre-bonne Parish. See La. Civ.Code art. 2045 (“Interpretation of a contract is the determination of the common intent of the parties.”). However, whether that 1966 agreement legally conveyed a mineral servitude turns on whether the property to be conveyed was sufficiently described, by incorporating the reference to the blue outlined “Productive Area” on the attached Tobin map in Exhibit “D” and the “Productive Sands” identified in Exhibit “I”, was sufficient to convey immovables under applicable Louisiana law and to put the St. Martins as surface owners on notice. Accordingly, we turn to the applicable law for determining the validity of a mineral servitude.

The standard of review applicable in this case is de novo, as the existence of a mineral servitude presents a question of law. See First National Bank, USA v. DDS Constmction, LLC, 11-1418 (La.1/24/12), 91 So.3d 944. Mineral leases are classified as incorporeal immovable property, and as such, they are subject to the public records doctrine as provided in the Louisiana Civil Code. La.Rev.Stat. 31:18. The question in this case is whether the 1966 mineral deed contained a sufficient property description as to put third parties on notice.

It has long been the rule that “[t]he description in a deed must be such that the property intended to be conveyed can be located and identified, and the general rule is that the description must fully appear within the four corners of the | ^instrument itself, or that the deed should refer to some map, plat, or deed as a part of the description, so that the same may be clear.” Daigle v. Calcasieu Nat’l Bank in Lake Charles, 200 La. 1006, 9 So.2d 394, 397 (1942). However, Louisiana jurisprudence has not established precise criteria to determine what description in the public records is sufficient to place third persons on notice, and such determination is to be made on a case by case basis. Nitro Energy, LLC v. Nelson Energy, Inc., 45,201 (La.App. 2 Cir. 4/14/10), 34 So.3d 524 (citing Santopadre v. Pelican Homestead and Sav. Ass’n, 782 F.Supp. 1138 (E.D.La.1992), and Peter Title, Louisiana Real Estate Transactions § 8:9 (2009)). Indeed, in Consolidated Ass’n of Planters of Louisiana v. Mason, 24 La. Ann. 518 (1872), this court recognized the impossibility of adopting a standard for distinguishing a description that would be sufficient from one which would not be sufficient to put third parties on notice, noting that “[w]e are not prepared to fix the line between a valid and invalid or sufficient and insufficient description, which shall serve as a guide in all future cases. Each case must depend on its own circumstances.” Accordingly, Louisiana courts have been liberal in construing the description of property in deeds, so as to sustain, rather than defeat, the conveyance. Emerson v. Cotton, 209 La. 1003, 26 So.2d 16 (1946); Nitro Energy, supra (“while not entirely and completely accurate in and of itself, the property in the Faust lease is described with a degree of particularity so as to leave no doubt as to the property intended to be affected”).

In White v. Ouaehita Natural Gas Co., Inc., 177 La. 1052, 1059-60, 150 So. 15, 17 (1933), this court summarized the rule regarding the sufficiency of a description insofar as third parties and notice is concerned as follows:

“It suffices if the description be such as to enable the court to determine with certainty, with the aid of such extrinsic evidence as is Inadmissible under the rules of evidence, what property was intended by the parties to be covered thereby. The description need not be given with such particularity as to make resort to extrinsic evidence unnecessary.” Tircuit v. Burton-Swartz Cypress Co., 162 La. 319, 110 So. 489, 492. Therefore, whilst an unrecorded deed can have no effect whatever on third persons, the same is not true where the deed is recorded but contains only an inaccurate or faulty description of the property but not so inaccurate or faulty as to be actually misleading. Hence when the only description in a mortgage was “one large property or tract at the corner of Orleans and Bourbon Streets” without any other boundaries given, this was held sufficient to put a purchaser on his guard. Roberts v. Bauer, 35 La.Ann. 453, citing City Bank v. Denham, 1844 WL 1351, 7 Rob. (LA) 39 (1844), and Ells v. Sims, 2 La.Ann. 251 (1847). See also■ Lee v. Long, 166 La. 1084, 118 So. 320 (1928).
Of course where the description in the recorded deed is so misleading that it actually describes accurately some other property than that mortgaged or sold, a purchaser is not only not put on his guard thereby, but is actually put off his guard, and in such case a resort to outside evidence would have the effect not merely of making the description certain, but of actually changing the record; and this cannot be allowed. Ducre v. Milner, 165 La. 433,115 So. 646; Sentell v. Randolph, 52 La.Ann. 52, 26 So. 797; Haas v. Fontenot, 132 La. 812, 61 So. 831; Roussel v. Railways Realty Co., 132 La. 379, 61 So. 409, 833; Williams v. Raymond, 163 La. 764, 112 So. 713 [(1927)].

White v. Ouachita Natural Gas, 177 La. at 1059-60, 150 So. at 17 (Emphasis in original).

Our review of the record in this case leads us to agree with the court of appeal that the plaintiffs did not acquire any mineral interest through their 1992 land acquisition, because the 1966 mineral deed was, and is, effective against third parties and “sufficiently specific” to create a mineral servitude showing that mineral interests were outstanding in other persons. Exhibit “D” to the 1966 mineral deed contains the blue outline on a Tobin map delineating the intended servitude area.

Ralph Gipson, accepted by the court as an expert professional land surveyor, testified that he was readily able to identify the blue lined “Productive Area” on the |1fiTobin map attached as Exhibit “D” to the 1966 agreement. He explained in depth his process of examining the Tobin map, as well as the origins of such maps, and his use of Exhibit “I” identifying the “Productive Sands,” which identified the township and range corresponding to the blue outline: He described in detail his method of plotting the outline of the “Productive Area” using public records such as well locations identified on the Tobin map, range and section lines, and prior surveys by surveyors in the public records such as T. Baker Smith. He also compared his interpretation of the “Productive Area” to that prepared by Charles Camp, who had been accepted as an expert professional surveyor and had prepared a plot of the blue and red outlines on Exhibit “D” for the plaintiffs in a related case. Mr. Gipson explained how both he and Mr. Camp had made different assumptions to ascertain certain boundaries of the “Productive Area.” In that regard, Mr. Camp, testifying in an earlier case, explained how he had used grid ticks from the Louisiana Coordinate System (South Zone), as well as surveys made by T. Baker Smith, rather than simply the section lines and other criteria used by Mr. Gipson. Mr. Camp, in the transcript of his testimony introduced in this case, also agreed that Tobin maps are worthwhile maps in terms of accuracy for surveying situations.

Mr. Gipson explained that every survey- or makes different assumptions, such that no two surveys of the same property would be expected to be absolutely identical. He explained that agreement, rather than identity, between different surveys would be professionally acceptable, and noted that the plot he created and the plot created by Mr. Camp differed by only about 3.6 acres out of a total area of some 1200 acres. When questioned on whether the same acreage could have different shapes, Mr. Gipson noted that the 1966 agreement did not specify an acreage and that, at any rate, the shape of the “Productive Area” was clearly set 116forth on the Tobin map labeled as Exhibit “D”. Although Mr. Gipson, and to his knowledge, no other party had performed a survey of the “Productive Area” on the ground, Mr. Gipson stated that such a survey could readily be made and, in fact, he had prepared a legal description of the intended servitude, introduced via his affidavit. Mr. Gipson allowed as he believed that the interpretation of the “Productive Area” made by Mr. Camp for the plaintiffs might have been more accurate in certain places, but he believed that the two interpretations were in substantial agreement.

Charles Rembert, accepted as an expert land surveyor, testified for the plaintiffs. He explained that, using updated Tobin maps for Terrebonne Parish, he was able to identify the “Productive Area” delineated on Exhibit “D” using the grid tick found on Exhibit “D”. However, he pointed out that different assumptions could be made, for example as to the width of the blue line itself, such that there could be variations in the shape and acreage of the “Productive Area.” He prepared plots and charts showing such variations. Accordingly, he opined that the “Productive Area” was not readily identifiable from the 1966 agreement because it lacked identifying marks and other information.

We do not find the property description in the 1966 mineral deed to be insufficiently descriptive as to be so misleading that it describes some other property than what the parties to the 1966 agreement intended to convey. See White v. Ouachita Natural Gas, 177 La. at 1060, 150 So. at 17. Notably, this is not a boundary action, wherein the court would be called upon to fix the actual boundaries of the servitude. Moreover, there is no doubt that the subject well and relevant portion of the St. Martin Property fall within the “Productive Area” delineated on Exhibit “D”. Thus, we are only called upon to determine whether 117the property description was sufficient to put third parties on notice that the property was encumbered by a mineral servitude. Exhibit “D” in conjunction with Exhibit “I” clearly identifies the township, range, and section number of land in Terrebonne Parish. While Exhibit “D” does not detail measures of the lines and angles, it clearly identifies the sections affected by the mineral servitude.

Although the parties to the 1966 mineral deed clearly intended to perform surveys to reform the property description so as to be more precise, nothing in the agreement provides that the lack of such a survey would invalidate the deed for want of an adequate property description. Furthermore, we conclude the property description in the 1966 mineral deed (the Tobin map when considered with other exhibits to the deed) was not so inaccurate or faulty as to be misleading, because the Tobin map and other matters of public record, along with admissible extrinsic evidence, furnished ample means of identifying the property the parties to the 1966 agreement intended to encumber with a mineral servitude, and thus the description of the property in the 1966 agreement was sufficient to serve as notice to third persons that the property was burdened by a mineral servitude. See H.J. Smith & Sons v. Baham, 157 La. 524, 102 So. 657, 658 (1925). Because we find the property intended by the parties to be encumbered by the servitude outlined in the 1966 agreement and the exhibits thereto can be determined with certainty, with the aid of extrinsic evidence, we affirm the court of appeal’s judgment holding in that regard.

|1STHE LUTPA CLAIM

Although the court of appeal did not directly address the merits of the plaintiffs’ LUTPA claim, we do so now, and, after reviewing the law and the record, conclude the trial court erred in finding a violation of LUTPA and awarding damages. The plaintiffs alleged the defendants violated LUTPA, set forth at La. Rev.Stat. 51:1401 et seq. Specifically, the plaintiffs alleged that IP Petroleum refused to pay royalties to the plaintiffs and had further instructed Phillips, which had been paying royalty payments after withholding its own royalty interest, to suspend royalty payments as a result of the Blue Line I case being in litigation. The plaintiffs alleged that, even after obtaining the mineral rights owned by Phillips in 2001 and Noble in 2005, IP Petroleum refused to pay royalties due. The plaintiffs alleged that Mr. Pearce, the lawyer for IP Petroleum, was informed of the settlements, such that no party was then claiming royalties adverse to the plaintiffs, but still IP Petroleum and Pure Resources refused to turn over the royalty payments. In the Blue Line I matter, the plaintiffs alleged, the defendants had failed to comply with numerous discovery requests resulting in judgments compelling IP Petroleum to comply and being cast with sanctions. The plaintiffs alleged that the defendants failed to disclose, among other documents, IP Petroleum’s request that Pure Resources suspend payments, the agreement wherein IP Petroleum sold its resources to Pure Resources, but maintained a 51% interest in Pure Resources, and the contribution agreement between IP Petroleum and Pure Resources. The plaintiffs also alleged that the defendants failed to disclose a purported agreement between Pure Resources and the legal defendants that IP Petroleum would file a concursus proceeding regarding approximately $107,000 in |13royaIty payments arising from production from the subject well. The plaintiffs allege the legal defendants withheld the check from Pure Resources for some eight months before depositing it into the law firm’s trust account. The plaintiffs alleged that the legal defendants attempted to coerce them into settling by offering them only a portion of the escrowed royalties, when they were entitled to 100% of those royalties. Finally, the plaintiffs alleged the defendants caused IP Petroleum to be “judgment proof’ and failed to disclose the relevant agreement to them. The trial court found all of these allegations to be supported by the evidence and granted judgment in favor of the plaintiffs.

Ultimately, the trial court found that as a result of the violations of LUTPA, the plaintiffs were not paid $924,441.95 of their earned mineral royalties from the St. Martin Property, and thus, per La. R.S. 51:4109, they were entitled to recover damages in the amount of three times that amount, plus interest, from the date of judicial demand on December 1, 2006, in addition to 25% of attorney fees.

We granted the defendants’ writ applications to determine whether the defendants’ discovery violations, their failure to reveal to the St. Martin Group that $106,977.66 in royalties claimed by the St. Martin Group was being held by Mr. Pearce and Montgomery Barnett, and the defendants’ failure to provoke a concursus as required by an agreement regarding the tender of royalties, violated LUTPA. The legal defendants argued that the court of appeal had effectively dismissed the LUTPA claim, after finding that the plaintiffs had no right to the royalties, and furthermore, that the plaintiffs’ LUTPA claim is unprecedented. Specifically, the legal defendants contend the dispute is merely a discovery dispute and as such, its elevation into a LUTPA lawsuit has no statutory or jurisprudential foundation because discovery disputes are resolved by the courts in which the |2ndispute arose, to be supplemented only by the Supreme Court’s authority to regulate the practice of law. Additionally, the legal defendants purport that there was no binding “concursus agreement” between Pure Resources and the IP defendants because Pure Resources never signed the IP defendants’ proposed agreement. Thus, the legal defendants owed no duty to the plaintiffs under the agreement. Lastly, the legal defendants contend that Mr. Pearce did not file a concursus action because ownership of the royalties was already being disputed in a pending lawsuit, and it made no sense to invoke another action on the same dispute, especially since concursus is an optional, not mandatory, procedure, as claimants to a fund have no statutory right to require a concursus.

In response, the plaintiffs argue that the LUTPA judgment still applies because the court of appeal vacated the trial court’s judgment without mentioning the LUTPA judgment and remanded only the after-acquired titles claim. The plaintiffs emphasize that the appellate court did not rule that the defendants were not liable for (1) breaching the agreement between Pure Resource and the IP-Defendants; (2) being in bad faith; (3) withholding royalties from the St. Martins; (4) misleading the St. Martins; or (5) breaching LUTPA. Rather, they contend the court of appeal remanded the matter for the trial court to make those determinations.

We agree with the defendants that elevating what is essentially a discovery dispute to the level of a LUTPA violation is unprecedented in our jurisprudence. No party, nor the trial court, has cited a case or statute affirmatively stating that such a dispute can or cannot rise to the level of an LUTPA claim. However, the policies behind the LUTPA and the statutes governing discovery disputes provide some guidance in determining that the alleged conduct of the legal defendants and |aithe IP defendants should be governed by the relevant discovery statutes rather than LUTPA.

In LUTPA, the legislature declared it to be unlawful to engage in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” La.Rev.Stat. § 51: 1405. Because of the broad sweep of this language, “Louisiana courts determine what is a LUTPA violation on a case-by-case basis.” Keith E. Andrews, Comment, Louisiana Unfair Trade Practices Act: Broad Language and Generous Remedies Supplemented by a Confusing Body of Case Law, 41 Loy. L.Rev. 759, 762 (1996) (hereinafter “Andrews”). This court has consistently held that in establishing a LUTPA claim, a plaintiff must show that “the alleged conduct offends established public policy and is immoral, unethical, oppressive, unscrupulous, or substantially injurious.” Cheramie Services, Inc. v. Shell Deepwater Prod., 09-1633, p. 11 (La.4/23/10), 35 So.3d 1053, 1059. “[T]he range of prohibited practices under LUTPA is extremely narrow,” as LUTPA prohibits only fraud, misrepresentation, and similar conduct, and not mere negligence. Id. at 11, 35 So.3d at 1059; Andrews, 41 Loy. L.Rev. at 763. Moreover, conduct that offends established public policy and is unethical is not necessarily a violation under LUTPA. See, e.g., Chera-mie Services, 09-1633 at 12, 35 So.3d at 1060 (“[0]nly egregious actions involving elements of fraud, misrepresentation, deception, or other unethical conduct will be sanctioned based on LUTPA.”); Vermilion Hosp., Inc. v. Patout, 05-82, p. 6 (La.App. 3 Cir. 6/8/05), 906 So.2d 688, 693 (noting that not all violations of the Louisiana Code of Ethics give rise to a cause of action under LUTPA and that persons aggrieved by such violations of the code of ethics are permitted to file a complaint with the Louisiana Board of Ethics or seek remedies under other statutes).

^Notably, LUTPA was modeled after the Federal Trade Commission Act (hereinafter “FTC Act”), and the two acts share the same goals: to protect consumers and to foster competition. See Andrews, 41 Loy. L.Rev. at 777. Specifically, these goals include halting unfair business practices and sanctioning the businesses which commit them, preserving and promoting effective and fair competition, and curbing business practices that lead to a monopoly and unfair restraint of trade within a certain industry. See, e.g., Slough v. Fed. Trade Comm’n, 396 F.2d 870 (5th Cir.1968), cert, denied, 393 U.S. 980, 89 S.Ct. 448, 21 L.Ed.2d 440 (1968) (“The aim of the [Act] is to stamp out unfair business practices and businesses which persist in practicing them.”); United States v. St. Regis Paper Co., 355 F.2d 688 (2d Cir. 1966) (noting that the policy of the FTC Act is to promote and preserve competition); Northern Warren Corp. v. Fed. Trade Comm’n, 59 F.2d 196 (2d Cir.1932) (“[The purpose of the Act] is to strike down at their inception practices which are unfair and which, if permitted to run their full course, would result in the creation of a monopoly and an undue- restraint of trade.”).

However, the goals of LUTPA were not intended to ensure ethical and fair cooperation between attorneys litigating a case. This goal is met by Louisiana’s discovery statutes, the basic objectives of which are:

(1) to afford all parties a full and fair opportunity to obtain facts pertinent to litigation, (2) to discover the true facts and compel disclosure of these facts wherever they may be found, (3) to assist litigants in preparing their cases for trial, (4) to narrow and clarify the basic issues between the parties, and (5) to facilitate and expedíate the legal process by encouraging settlement or abandonment of less than meritorious claims.

Hodges v. S. Farm Bureau Cas. Ins. Co., 433 So.2d 125, 129 (La.1983). Louisiana courts construe these discovery statutes liberally and broadly to ensure that these objectives are met. Id.

_[sK¡In the case at hand, the plaintiffs essentially allege two actions leading to a LUTPA violation: (1) the defendants failed to disclose, despite several interrogatories and requests for production, to the plaintiffs that the defendants were in possession of . the mineral royalty funds; and (2) the defendants failed to invoke a con-cursus proceeding after receiving the funds. We find that such actions do not rise to the level of a violation of LUTPA, even though they may violate rules pertaining to discovery or ethical conduct. See Thibaut, Thibaut, Garrett and Bacot v. Smith and Loveless, Inc., 576 So.2d 532, 537 (La.App. 1st Cir.1990) (LUTPA is an act of the legislature and cannot be applied to regulate or define the practice of law, including the conduct of attorneys). In the Blue Line I case, the defendants were in fact found to have violated discovery rules and were ordered to comply and were sanctioned by the trial court. The plaintiffs have not sought review of the trial court’s discovery rulings in the Blue Line I case. Additionally, a concursus proceeding is not required by law, although it is a permitted procedure when a party is faced with competing or conflicting claims. See La.Code Civ. Proc. art. 4562. Here, the defendants reasonably believed that such a proceeding was not necessary because the plaintiffs had already asserted their claim for unpaid royalties in the pending Blue Line I case. In sum, the defendants’ actions in this case do not violate LUTPA because they do not fall under the protection of LUTPA’s narrow goal of protecting against egregious actions of fraudulent, deceitful, and unfair business practices to promote and foster healthy and fair business competition. Rather, the defendants’ actions are more appropriately governed by our Code of Civil Procedure’s discovery rules, which are meant to afford all parties to a lawsuit full and fair opportunities to obtain facts pertinent to the litigation. Accordingly, we conclude the trial court under the facts of this case erred in finding the defendants violated the provisions of LUTPA.

1 ^CONCLUSION

For the reasons set forth above, we affirm the court of appeal’s decision to vacate the trial court’s judgment in favor of the plaintiffs. We hold that the 1966 mineral deed was sufficiently specific to identify the property to be conveyed and, thus, to create a valid mineral servitude and to place third parties on notice of the existence of that servitude. We thus con-elude the plaintiffs did not acquire the mineral rights to the subject property via the 1992 cash sale. We further End that the actions of the defendants did not rise to the level of an unfair trade practice within the meaning of LUTPA. Accordingly, the plaintiffs’ claims under LUTPA are dismissed as to both the IP defendants and the legal defendants. We also affirm the remand of the case to the trial court for consideration of any royalty payment issues stemming from the after-acquired rights, if any, arising out of the 2001 and 2005 settlements.

AFFIRMED; RENDERED IN PART; CASE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.

JOHNSON, Chief Justice, dissents in part for reasons assigned by Justice KNOLL.

KNOLL, Justice, dissents in part and assigns reasons.

CLARK, Justice, concurs in part and dissents in part for reasons assigned by Justice KNOLL.

Retired Judge LEMMIE O. HIGHTOWER, assigned as Justice ad hoc, sitting for HUGHES, J., recused.

KNOLL, Justice,

dissenting in part.

| ^though I agree the conduct of the defendants, which essentially amounts to a discovery violation, did not rise to the level of an unfair trade practice within the meaning and purpose of the Louisiana Unfair Trade Practices Act, I disagree with the majority opinion Ending the property description in the 1966 conveyance was sufficient to transfer the mineral rights at issue.

Under this Court’s well-settled jurisprudence, “a deed, in order to be translative of title to real estate, must contain such a description as to properly identify the property.” Smiling v. Adair, 196 La. 624, 640, 199 So. 782, 787 (1940). A mineral servitude, as a mineral right, is an incorporeal immovable, and so, its transfer must be made in authentic form, subject to our rules governing the transfer of immov-ables. Peironnet v. Matador Resources Co., 12-2292, pp. 18-19 (La.6/28/13), 144 So.3d 791, 2013 WL 3752474. It follows, therefore, a valid mineral servitude is only created when the property description in the deed is sufficiently specific to permit the identification of the encumbered property to be ascertained with certainty:

|2.... If one takes possession of a tract of land under a deed, which does not contain a description sufficiently correct to enable an average surveyor, in point of ability, to identify it, he cannot claim to be a possessor in good faith ...
It is necessary that the description should be sufficiently complete to serve the purpose of identification.

Blevins v. Manufacturers Record Pub. Co., 235 La. 708, 741-42, 105 So.2d 392, 404 (1957) (on original hearing). The determination of whether a description is sufficient is made on a case by case basis. Emerson v. Cotton, 209 La. 1003, 1013, 26 So.2d 16, 19 (1946).

In the present case, for the 1966 conveyance to convey the mineral interests at issue, it had to contain a description of the encumbered property sufficient to enable an average surveyor or such to identify it. The description was contained in the Tobin map outlined in blue, and in accordance with the rules of evidence, the parties brought in experts to opine as to what the blue outline actually depicted geographically and cartographically. However, the experts differed as to what the blue outline actually entailed, and the trial court specifically found the 1966 conveyance did not convey any servitudes due to its made-quate descriptions. Even the parties to the 1966 conveyance sought further clarification by agreeing “forthwith to cause an accurate survey to be made of each of the areas outlined in blue, and the detailed survey plats, when approved by the parties and filed of record, shall be substituted for Exhibits ‘A’ through ‘H’ and shall constitute a part of this agreement.”

In my view, the sufficiency of the description is a question of fact properly determined by the trier of fact. See e.g., Energy Development Corp. v. Quality Environmental Processes, Inc., 00-314 (La. App. 5 Cir. 12/4/00), 777 So.2d 481, 486 (finding no manifest error in trial court’s conclusions regarding the 1966 and 1971 conveyances); Florida v. Roscoe, 479 So.2d 406, 408 (La.App. 1st Cir£985)3 (affirming trial court’s “finding of fact that the property description [in tax sale advertisement] was sufficient”). In light of the expert testimony, the trial court’s factual conclusions on the inadequacy of the description were reasonably supported by the record evidence. Therefore, under the manifest error doctrine, I would defer to its findings and reverse the judgment of the court of appeal on this issue. For these reasons, I respectfully dissent.

       Retired Judge Lemmie O. Hightower, sitting Justice ad hoc for Hughes, J., recused.

      . La.Rev.Stat. 31:21 provides that "A mineral servitude is the right of enjoyment of land belonging to another for the purpose of ex- - ploring for and producing minerals and reducing them to possession and ownership."

      . The copy of the 1966 mineral deed filed into evidence is illegible in parts.

      . Tobin maps are produced with the assistance of aerial photography and have long been used in Louisiana public records and the oil and gas industry.

      . Defendants’ expert Ralph Gipson indicated he immediately could discern from his familiarity with the area the township and range, but also referenced Exhibit "I” to the 1966 mineral deed, which listed and described all of the "Known Productive Sands” for which mineral rights were being conveyed in the “Lake Hatch-Sunrise Field, Terrebonne Parish, Louisiana," and these were stated as being in "Range 16 East.” Plaintiffs’ expert Mr. Rembert testified that he used updated Tobin maps and superimposed Exhibit "D” onto the more current Tobin map for Terrebonne Parish using the grid tic found on Exhibit "D”.

      . Section, township and range signify the division of land west of the Appalachians adopted by the U.S. Government in 1785. Townships are squares of 36 square miles, and a series of townships constitutes a Range. Each township may be divided into sections of one square mile. All divisions are related to a base meridian. In Exhibit "D” to the 1966 Agreement, the Section numbers appearing on the map, reading from the upper left-hand corner, include: 83, 82, 60, 61, 62, 63, 64, 65, 66, 1, 2, 3, 10, 11, 12, 13, 14, and 15).

      . The parties do not dispute that any claims for royalties due prior to June 29, 1997, had prescribed at the time of the suit filed in 2000.

      . In the 2006 action, IP Petroleum’s motions to strike and exceptions of no cause of action, no right of action, and lis pendens were denied/overruled by the trial court on May 23, 2007. The defendants’ applications for supervisory review as to the motions and exceptions were denied. See Quality Environmental Processes, Inc. v. IP. Petroleum Company, Inc., 07-1080, 07-1081 (La.App. 1 Cir. 8/7/07) (unpublished).

      . As further support for our finding that the 1966 mineral deed conveyed mineral rights and created a mineral servitude in the "Productive Area" in the Lake Hatch Sunrise Field in Terrebonne Parish, and was sufficient to put third parties on notice of such servitude, we note in passing that the plaintiffs in the instant action, wherein they presently assert the 1966 mineral deed was insufficient to convey any mineral rights, have previously taken a contrary position in other litigation concerning mineral rights in the "Protective Area.” See Energy Development Corp. v. Quality Environmental Processes, Inc., 00-314 (La. App. 5 Cir. 12/4/00), 777 So.2d 481, writ denied, 01-0010 (La.3/9/01), 786 So.2d 734; Mandalay Oil & Gas, L.L.C. v. Energy Development Corp., 01-0993 (La.App. 1 Cir. 8/4/04), 880 So.2d 129, writ denied, 04 — 2426 (La. 1/28/05), 893 So.2d 72.

      . La.Rev.Stat. 51:1405 provides that "[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”


author: PER CURIAM.

text:
    In re Justice of the Peace Mary FORET.
    No. 2014-0-0526.
    Supreme Court of Louisiana.
    May 28, 2014.
    Rehearing Denied June 20, 2014.
   ON RECOMMENDATION FOR DISCIPLINE FROM THE JUDICIARY COMMISSION OF LOUISIANA

PER CURIAM.

| ,This matter comés before the court on the recommendation of the Judiciary Commission of Louisiana (“Commission”), pursuant to La. Const, art. V, § 25(C), that respondent, Justice of the Peace Mary Foret, Second Justice of the Peace Court, Lafourche Parish, State of Louisiana, be suspended with pay for sixty days and ordered to pay the costs of the prosecution of these proceedings. For the reasons that follow, we suspend respondent without pay for sixty days and order her to pay costs.

UNDERLYING FACTS

The facts of this matter are not in dispute, having been stipulated to by the parties. The Formal Charge against respondent arises out of a small claims case in her court brought by Norris and Gloria Comeaux against Charles and Carol Le-Blanc. Both prior to and after the filing of the lawsuit, respondent engaged in numerous ex parte communications with the parties concerning the substantive issues in the case. These ex parte communications were conducted by respondent directly as well as through her constable, Dwain Le-Bouef. Respondent also engaged in improper independent investigation into the background of the case by having Constable LeBouef obtain the police report of an altercation between Mr. |2Comeaux and Mr. LeBlanc. Despite these ex parte communications and independent fact-finding about the case, respondent did not recuse herself.

' When the Comeaux case was set for hearing, respondent knowingly allowed Constable LeBouef to participate in the hearing to a significant extent. Specifically, respondent permitted Constable LeBouef to question the parties and a witness, determine the order of the proceedings, threaten to hold the litigants in contempt, and comment at length on his opinion of Mr. LeBlanc’s case, including making points of fact not raised by Mr. Comeaux and about which there was no testimony or evidence. Respondent also allowed Constable LeBouef to participate in her decision-making process by asking him at the conclusion of the hearing what he thought of the case.

PROCEEDINGS BEFORE THE COMMISSION

The LeBlanes filed a complaint against respondent with the Commission. In addition, the Office of Special Counsel (“OSC”) received a written report from the Lafourche Parish District Attorney concerning the issues raised in the complaint. Following an investigation, the Commission filed a Formal Charge against respondent, alleging that she engaged in improper ex parte communications with the parties in a case before her, engaged in improper independent investigation into the background of the case, failed to re-cuse herself, and improperly delegated her judicial duties to her constable, in violation of Canons 1, 2A, 2B, 3A(1), 3A(4), 3A(6), 3A(7), and 3C of the Code of Judicial Com duct and La. Const, art. V, § 25(C).

1 ¡¡Respondent and the OSC then entered into a stipulation of facts in which respondent admitted all of the factual allegations contained in the Formal Charge. The parties also entered into a stipulation of law in which respondent admitted that her conduct violated the Code of Judicial Conduct and the Louisiana Constitution as charged. The Commission agreed to dispense with a hearing and accepted the stipulations subject to further questioning of respondent at a Commission meeting.

FINDINGS OF THE COMMISSION

Applying the factors set forth in In re: Chaisson, 549 So.2d 259 (La.1989), the Commission concluded as follows:

(a) Although respondent has no prior disciplinary history before the Commission or the Supreme Court, the conduct at issue in this case was not an isolated instance. Respondent made a practice of independently obtaining police reports in 90% of her cases. Respondent frequently allowed Constable LeBouef to “assist” with hearings in her court to an impermissible extent, including regularly allowing him to question witnesses at hearings, especially in criminal matters.

|4(b) The misconduct involved here is quite serious. Respondent improperly delegated her judicial authority to Constable LeBouef by allowing him to participate to a significant extent in conducting the hearing in the Comeaux case with her full knowledge and approval, including allowing him to: question a witness; determine the order of the proceedings; comment at length on his opinion of the case, which included making points of fact about which there was no testimony or evidence; threaten to hold the parties in contempt of court; and participate in the decision-making process both in front of the parties and in private. Respondent frequently allowed Constable LeBouef to “assist” with court hearings to an impermissible extent.

Respondent engaged in ex parte communications before the hearing with both parties regarding the substantive issues in the case. Further, respondent conducted an improper investigation into the facts of the case by obtaining a copy of the police report filed by Mr. LeBlanc against Mr. Comeaux. Despite such independent investigation and ex parte communications, respondent failed to recuse herself from the case. She regularly conducted improper independent investigations in her cases by obtaining copies of police reports, if they existed.

(c) Respondent’s improper delegation of her judicial authority to Constable Le-Bouef occurred in the courtroom. Respondent’s misconduct in engaging in improper ex parte communications and independent investigation of the facts occurred outside of the courtroom.

(d) The misconduct at issue occurred in respondent’s official capacity as Justice of the Peace.

(e) Respondent has acknowledged and apologized for her misconduct. During her appearance before the Commission, however, respondent made several statements that indicated she did not truly understand why some of her actions |swere improper. Further, respondent placed some blame for her predicament on the LeBlancs.

(f) Respondent has detailed her efforts to change or modify her conduct. She has attempted to educate herself in an effort to correct her improper conduct, including rereading the Justice of the Peace Court Manual, familiarizing herself with the Code of Judicial Conduct, speaking with other Justices of the Peace, and attending the Louisiana Attorney General’s 2013 Training Conference. Respondent has also agreed to attend the Louisiana Attorney General’s 2014 Training Conference, although she is not legally obligated to do so, and intends to share her experience with other Justices of the Peace so that they may avoid her mistakes. She tried to address the concerns about her constable’s participation in hearings by asking him not to attend hearings at all, even to provide security.

(g) Respondent had served as Justice of the Peace for twenty-three years at the time of her misconduct.

(h) Respondent has no history of prior ethical misconduct in more than two decades of service as a justice of the peace.

(i) Respondent’s actions have harmed the integrity of and the respect for the judiciary. She improperly delegated her judicial authority to her constable and frequently allowed him to “assist” her in the proceedings before her. She even delegated her most basic role as a decision-maker to her constable in the Comeaux case by allowing him to participate in the decision-making process. Several agencies were notified of respondent’s actions, including the Louisiana State Police, the Lafourche Parish District Attorney’s Office, and the Lafourche Parish Sheriffs Office.

(j) There is no evidence that respondent used her position to satisfy her personal desires in this matter.

|BBased on these findings, the Commission recommended respondent be suspended with pay for sixty days. The Commission also recommended that respondent be ordered to reimburse $196.00 in hard costs to the Commission.

After the Commission’s recommendation was filed in this court, the parties filed a motion seeking to waive briefing and oral argument and to have the court consider the case based on the entire record of this matter. Respondent stated in the motion that she accepted the Commission’s recommendation of discipline, but she recognized this court is not bound to accept that recommendation. On April 9, 2014, we issued an order granting the motion to waive oral argument, but requiring the parties to submit briefs addressing the Commission’s recommendation that respondent be suspended with pay. Both parties filed briefs in response to the court’s order.

DISCUSSION

Because respondent and the Special Counsel have stipulated to the facts, the sole issue presented is the appropriate measure of discipline in this case. In re: Shea, 02-0643 (La.4/26/02), 815 So.2d 813; In re: Deeuir, 95-0056 (La.5/22/95), 654 So.2d 687. In determining an appropriate sanction, we are mindful that the primary purpose of the Code of Judicial Conduct is to protect the public rather than discipline judges. In re: Harris, 98-0570 (La.7/8/98), 713 So.2d 1138; In re: Marul-lo, 96-2222 (La.4/8/97), 692 So.2d 1019.

As the Commission concluded, respondent has engaged in a pattern of serious conduct which harmed the integrity of the judiciary. She improperly delegated her judicial authority to her constable by allowing him to “assist” in the proceedings before her and by allowing him to participate in her decision-making process. She also engaged in improper ex parte communications with the litigants and gave the appearance of deciding the case based on factors outside of the |7evidence. A justice of the peace as experienced as respondent should be well aware of the need to maintain public respect and confidence in an impartial judiciary.

Nonetheless, we find the record supports the Commission’s determination that respondent did not act in bad faith in this matter and that she has made a sincere effort to correct her improper conduct. Good faith is not an affirmative defense to a judicial disciplinary charge; however, it may be considered as a mitigating factor which militates in favor of a lesser sanction. Marullo, 96-2222 at p. 7, 692 So.2d at 1023; Chaisson, 549 So.2d at 267.

Considering all the circumstances in light of our prior jurisprudence, we conclude a sixty-day suspension is appropriate. Although the Commission recommended the suspension be with pay, we see no compelling reason to do so under the instant facts. Accordingly, respondent’s suspension shall be without pay. We will also order respondent to reimburse costs to the Commission.

DECREE

For the reasons assigned, it is ordered that Justice of the Peace Mary Foret, Second Justice of the Peace Court, Lafourche Parish, State of Louisiana, be suspended from office for a period of sixty days, without pay. Further, pursuant to Supreme Court Rule XXIII, § 22, we cast Justice of the Peace Foret with costs incurred in the investigation and prosecution of this proceeding in the amount of $196.00.

       Weimer, J. recused.

      . This was not the only case in which respondent independently obtained a police report; she made a practice of doing so in 90% of her cases.

      . According to the joint stipulations of fact, the Comeaux case was not an isolated occurrence in terms of the participation by Constable LeBouef. Rather, respondent frequently allowed Constable LeBouef to "assist” with hearings in her court to an impermissible extent.

      . Although the parties stipulated to the facts and legal conclusions, they were unable to agree upon a recommended penalty. Prior to the Commission hearing, the OSC filed a memorandum in which it argued that the appropriate sanction in this case is removal. For her part, respondent submitted a letter to the Commission in which she opposed removal but did not address what sanction should be recommended by the Commission to this court, if any. In its recommendation, the Commission observed that although respondent’s conduct is serious, it was not felt "to be the type of conduct for which a recommendation of removal is warranted.”

      . In Chaisson, this court set forth a nonexclusive list of factors which may be considered in imposing discipline against a judge. These factors are as follows:
      (a) whether the misconduct is an isolated instance or evidenced a pattern of conduct;
      (b) the nature, extent and frequency of occurrence of the acts of misconduct; (c) whether the misconduct occurred in or out of the courtroom; (d) whether the misconduct occurred in the judge's official capacity or in his private life; (e) whether the judge has acknowledged or recognized that the acts occurred; (f) whether the judge has evidenced an effort to change or modify his conduct; (g) the length of service on the bench; (h) whether there have been prior complaints about this judge; (i) the effect the misconduct has upon the integrity of and respect for the judiciary; and (j) the extent to which the judge exploited his position to satisfy his personal desires.

      . While there are no prior cases involving the exact combination of misconduct at issue here, a review of the jurisprudence in similar cases supports the conclusion that a sixty-day suspension is appropriate for the misconduct when considered as a whole. See, e.g., In re: Cresap, 06-1242 (La.10/17/06), 940 So.2d 624 (suspending judge for thirty days for, among other misconduct, engaging in prohibited ex parte communications by telephoning one of the parties); In re: Badeaux, 11-0214 (La.7/1/11), 65 So.3d 1273 (judge censured for failure to self-recuse from case involving close personal friends, one of whom had engaged in ex parte communications with the judge about the case); In re: Best, 98-0122 (La. 10/20/98), 719 So.2d 432 (censuring judge for, among other misconduct, asking the audience to vote on the guilt or innocence of a criminal defendant).


text:
    In re Jennifer MATTE.
    No. 2014-OB-1200.
    Supreme Court of Louisiana.
    June 20, 2014.
   ORDER

| Considering the Joint Petition for Transfer to Active Status filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that Jennifer Matte, Louisiana Bar Roll number 19036, be and she hereby is reinstated to active status pursuant to Supreme Court Rule XIX, § 22(G), subject to the condition that she must fully and completely adhere to all terms of her recovery agreement with the Lawyers Assistance Program, and such other conditions as may be imposed upon her by the Lawyers Assistance Program. The Office of Disciplinary Counsel shall monitor respondent’s compliance with her recovery agreement and notify this court of any violation, which may be grounds for immediately returning respondent to disability inactive status.

This order shall be effective immediately-

FOR THE COURT:

/s/ Bernette J. Johnson Justice, Supreme Court of Louisiana