author: THIBODEAUX, Chief Judge.

text:
    Carlos BOONE, et ux. v. CONOCO PHILLIPS COMPANY, et al.
    No. 13-1196.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.
    Rehearing Denied July 2, 2014.

      Warren A. Perrin, Perrin, Landry, de-Launay, Dartez & Ouellet, Lafayette, LA, for Plaintiffs/Appellants-Carlos Boone and Lori Theriot Boone.
    Morgan J. Wells, Jr., Larzelere, Picou, Wells, Simpson, Lonero, LLC, Metairie, LA, for Defendant/Appellee-EnerQuest Oil & Gas, LLC.
    Michael Gregory Stag, Smith Stag, LLC, New Orleans, LA, for Plaintiffs/Appellants-Carlos Boone and Lori Theriot Boone.
    Rebecca H. Dietz, King, Krebs & Jur-gens, PLLC, New Orleans, LA, for Defendant/Appellee-Conoco Phillips Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN E. CONERY, Judges.

      . Under La.Code Civ.P. art. 1151, a party may amend its petition if the new claims accrued prior to filing the original suit; under Article 1155, a party may be permitted to file a supplemental petition setting forth related items of damage or causes of action that became exigible after the original petition was filed; but the relation back of Article 1153 applies only to the amended petition. See Cutter Biological, 770 So.2d at 411-12.

   THIBODEAUX, Chief Judge.

|)The plaintiffs, Carlos and Lori Boone, appeal from a motion for summary judgment and exception of prescription decided adversely to them and filed by EnerQuest Oil & Gas, LLC, lessee of former owners of the plaintiffs’ property. Finding that the plaintiffs failed to carry their burden of proving a valid right of action in tort or contract, we affirm the judgment dismissing EnerQuest from the plaintiffs’ suit.

I.

ISSUES

We must decide:

(1) whether the trial court erred in granting summary judgment to En-erQuest; and
(2) whether the trial court manifestly erred in granting EnerQuest’s exception of prescription.

II.

FACTS AND PROCEDURAL HISTORY

In August of 2005 the Boones purchased 18.66 acres of land encumbered by mineral reservations and oil and gas leases; the sale price was $120,000.00. The sellers, Primeaux Properties, Inc., had purchased the encumbered property in 2003 from Aaron Lagneaux and Eric Lagneaux for $105,000.00. Oil and gas operations on the property allegedly date back to 1972. The Lagneaux acquisition was via generational inheritances dating back to 1971, and it apparently included the minerals because Lagneaux specifically reserved “all 12of the minerals and mineral rights” to the property in its act of sale to Primeaux in 2003.

The defendant oil and gas operator, En-erQuest, had purchased the wells and operating rights from Phillips Petroleum Company in 2000. EnerQuest sold all of its operating rights and interest in the property, along with all of its leases, facilities, wells, and equipment to Petro “E” in 2004. The sale and assignment to Petro “E” included EnerQuest’s use of, and obligation to clean and restore, the surface of the property.

In May of 2010, the Boones, asserting contamination and property damage, filed suit against six oil and gas operators, including CONOCOPHILLIPS Company as successor to Phillips, EnerQuest, Petro “E,” and three other operators. The Boones asserted that they had within the last year found abandoned debris and equipment and asserted a failure to properly clean and restore the property. In a first amended petition in July of 2012, the Boones identified three of five wells on the property that had been operated by Ener-Quest prior to its sale to Petro “E.”

EnerQuest filed a motion for summary judgment asserting that the Boones were precluded by law from asserting a tort or contract claim for property damage that pre-dated their 2005 acquisition of the property without a specific assignment of that right from the former owner. Among its exhibits, EnerQuest attached an “Operator History by Well” for each of its three former wells, showing that EnerQuest did not conduct any operations on the property after April 30, 2004, when it sold its rights and interest to Petro “E,” effective May 1, 2004. EnerQuest also attached the act of sale from Primeaux to the Boones dated August 26, 2005, showing that no assignment of pre-acquisition damage rights were conveyed to the Boones by the previous owner, Primeaux.

|3The Boones’ opposition to the motion for summary judgment included newly-obtained assignments of rights from the previous owners, Primeaux and Lagneaux. EnerQuest asserted that the assignments were invalid and that any tort claims they sought to transfer were prescribed since Lagneaux sold the property in 2003 and Primeaux sold the property in 2005.

The trial court allowed the Boones permission to file a second supplemental and amending petition asserting their right as assignees to the rights of the previous owners; claims for fraud and conspiracy, as well as the solidary liability of all defendants. The trial court then granted Ener-Quest’s motion for summary judgment and exception of prescription.

III.

STANDARD OF REVIEW

The grant or denial of a motion for summary judgment is reviewed de novo, “using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (citations omitted); La.Code Civ.P. art. 966. “When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review.” Specialized Loan Servicing LLC v. January, 12-2668, pp. 3-4 (La.6/28/13), 119 So.3d 582, 584 (citations omitted).

Ji.IV.

LAW AND DISCUSSION

At issue in this matter is the correctness of the trial court’s judgment granting the motion for summary judgment and the exception of prescription filed by the defendant, EnerQuest. The bases of Ener-Quest’s motion and exception are that the Boones (1) have no valid contract claims against EnerQuest because the subsequent purchaser doctrine invalidates their claims for pre-acquisition property damage; the plaintiffs are not a party to any lease, assignment, or other contract with Ener-Quest; and the plaintiffs did not obtain an assignment of any contractual rights from the previous owners. EnerQuest further asserts that the Boones (2) have no claims in tort because any tort claims acquired from the previous owners have prescribed; the claims asserted in the plaintiffs’ second supplemental petition do not relate back to the original petition; and EnerQuest is not solidarity liable with Petro E for any actionable tort claims.

The Boones argue that (1) their contract claims are valid because the subsequent purchaser doctrine does not apply; the relevant contracts give them a right of action to sue for damages and restoration of the property; and the contract claims have not prescribed because EnerQuest operated under mineral leases until 2004, and the surface lease was in effect until 2012. As to the tort claims, the Boones argue that (2) they timely asserted tort claims against solidary and/or joint tortfea-sors; they obtained valid assignments of the tort claims at the time of the damage; and their second supplemental petition relates back to the filing of their original petition for damages.

We begin with a review of the subsequent purchaser rule or doctrine.

| ^Subsequent Purchaser Doctrine

The subsequent purchaser rule is a jurisprudential rule which holds that an owner of property has no right or actual interest in recovering from a third party for damage which was inflicted on the property before his purchase, in the absence of an assignment or sub-rogation of the rights belonging to the owner of the property when the damage was inflicted.

Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, p. 8 (La.10/25/11), 79 So.3d 246, 256-57.

In articulating the application and source of the subsequent purchaser doctrine, the Louisiana Supreme Court in Eagle Pipe and Supply, Inc. provided a thorough analysis of the pertinent principles of Louisiana property law and Louisiana’s law of obligations in the Louisiana Civil Code. Relevant to our inquiries here, a real right is not defined by the Civil Code but has long been held to be a proprietary interest and a species of ownership, which “defines the relation of man to things and may, therefore, be declared against the world.” Eagle Pipe and Supply, Inc., 79 So.3d at 259 (quoting Harwood Oil & Mining Co. v. Black, 240 La. 641, 652, 124 So.2d 764, 767 (1960)). A real right and a real obligation both attach to a thing. Id. at 261; La.Civ.Code art. 1764, Revision Comments-1984, (b).

The legal right that a person has against another person to demand the performance of an obligation is called a personal right. Distinct from a real right, which can be asserted against the world, a personal right is effective only between the parties. La. C.C. art. 1758. This court has declared that “a personal right ... defines man’s relationship to man and refers merely to an obligation one owes to another which may be declared only against |fithe obligor.” Harwood Oil & Mining Co., 240 La. at 651, 124 So.2d at 767 citing Reagan [v. Murphy], 235 La. [529], 541, 105 So.2d [210], 214 [(1958)].
This court has held “[u]nder the civil law concept, a lease [a contract about property] does not convey any real right or title to the property leased, but only a personal right.” Richard v. Hall, 2003-1488, p. 17-18 (La.4/23/04), 874 So.2d 131, 145. “That a lease is not a real right under the civil law is well settled.” Reagan, [105 So.2d at] 214.
Real rights, and real obligations pass to a subsequent acquirer of the thing to which it is attached without the need of a stipulation to that effect. La. C[iv. Code] art. 1764, Revision Comments-1984, (c). A personal right, by contrast, cannot be asserted by another in the absence of an assignment or subrogation. La. C.C. art. 1764, Revision Comments-1984, (d) and (f).

Eagle Pipe and Supply, Inc., 79 So.3d at 261-62 (footnotes omitted).

Based upon the foregoing, real rights and obligations attach to the thing, while personal rights and obligations attach to the person. Further, and more specifically, the real rights and obligations of ownership attach to a piece of property when it is sold without the need of a stipulation, but the personal rights and obligations arising from a lease between the former owner and the lessee for events occurring before the sale do not pass to the new owner unless they are specifically assigned.

As illustrated by Eagle Pipe and Supply, Inc. through its analysis of Clark v. J.L. Warner Co. et al., 6 La.Ann. 408 (1851) and subsequent jurisprudence, the former owner retains the right to recover the damages caused by the former owner’s lessee during the former owner’s ownership of the property. “This personal right of the property owner arises because his real rights in the [ 7ownership of the property have been disturbed-his use, enjoyment or disposal of the property.” Eagle Pipe and Supply, Inc., 79 So.3d at 264. The court further stated:

Clark explicitly states [that] the personal right of the property owner to demand damages for the injury to the property must be assigned or subrogat-ed if the personal right is to survive a change of ownership in the property:
[The former owner’s] bill of sale to the plaintiff is in the usual form for the conveyance of real estate and its appurtenances. It does not transfer her claim for damages, expressly, nor is there anything in it which indicates a transfer by implication. The rights and appurtenances mentioned in the bill of sale have always been considered real rights. It does not appear, therefore, either by law or contract, that the plaintiff has any claim for damages previous to the 16th of May, 1848, when he purchased the property. .

Eagle Pipe and Supply, Inc., 79 So.3d at 264-65 (quoting Clark, 6 La.Ann. at 409).

Here, the act of sale from Pri-meaux to the Boones on August 26, 2005, provides that, for the consideration of $120,000.00, Primeaux “transferís] and deliver[s] with full guarantee of title and free from all encumbrances and with subrogation to all of its rights and actions, of warranty against previous owners” the 18.66-acre tract of land in the legal description. Likewise, the previous act of sale from Lagneaux to Primeaux in 2003 contained almost identical language. Under Clark and Eagle Pipe, this language is general language and in the usual form for a conveyance of real estate. It does not assign the seller’s personal right to sue the lessee for damage already done to the land.

The 2003 Lagneaux act of sale states that Lagneaux “reserves all of the minerals and mineral rights to the subject property” and that the sale to ^Primeaux is subject to mineral reservations and leases. The 2005 Primeaux act of sale to the Boones references the prior sale from Lagneaux to Primeaux in 2003 and provides the recordation information. Both acts of sale state that the sale is “subject to the restrictive covenants, easements, mineral reservations, mineral leases and obligations of ownership” affecting the property. Thus, both documents indicate that mineral rights and leases have been reserved and encumber the land, and neither document transfers to the new owner the former owner’s right to sue for damages.

The subsequent purchaser doctrine is not limited to apparent damages; it applies to prohibit suit against the lessee whether the pre-acquisition damage is apparent or not. Eagle Pipe and Supply, Inc., 79 So.3d 246. If damage to the property is apparent, the purchaser is presumed to know its condition and to have negotiated a sale price taking the defects into consideration. Id. If the damage is not apparent, the purchaser has a cause of action in redhibition against the seller for rescission of the sale or reduction of the sale price, but he does not have a right of action against the seller’s lessee.

The subsequent purchaser doctrine is not limited to tort claims, as shown in Clark, 6 La.Ann. 408, and it is not limited to cases involving expired leases, as suggested by the Boones. In its comprehensive analysis of the doctrine, the court in Eagle Pipe and Supply, Inc., 79 So.3d at 266 (emphasis added) (footnote omitted), discussed further jurisprudence that included the relevant issues, as follows:

In Matthews v. Alsworth, 45 La.Ann. 465, 12 So. 518 (1893), property was sold subject to an existing lease. The new owner filed suit against the lessee for a dissolution of the lease based on the lessee’s violation of his obligations, for compensation for the diminution in 1¡¡the value of the property for the lessee’s damage to the property, and for the rent for the year which accrued in the year before the sale. This court found the new owner had no right of action to sue for damages from the lessee for damage to the property before the sale, either under the lease contract or in tort. Instead, the right to sue for damage to the property inflicted before the sale was a personal right of the former owner/lessor which arose from the lessee’s breach of the contractual obligations of the lease during the time the lessee owed those obligations to the former owner/lessor.
The former owner had not assigned or subrogated this personal right to the new owner in the act of sale. The deed contained the following language:
Said lease and all the aforesaid conveyors’ rights in, to, or under the same are transferred hereby, and simultaneously herewith, to the convey-ee herein. This conveyance is made with complete transfer and subrogation of all rights and all actions of warranty or otherwise against all former claimants, proprietors, tenants, or warrantors of the property herein conveyed.
By this language, the court held the new owner/lessor was subrogated to the lease provisions, but only from the date of his purchase of the property. “The lessee is liable on the covenants of his lease, and to these, unquestionably, plaintiff [the new property owner] is subrogated from the date of his purchase. By the use of the words ‘right in, to, or under the lease,’ the plaintiff did not become an assignee of damages of date prior to the sale.” Matthews, 45 La.Ann. at 469, 12 So. at 519.
The personal right of the owner to sue for damages was not explicitly assigned in the act of sale, and additionally was not an accessory right which passed with the title without description of, or reference to, the claim. In the act of sale, the property was specifically described, and there was no mention of a claim for damages. The court held it could not “presume that there were additional rights in the nature of damages, the deed being silent as to damages.” Matthews, 45 La.Ann. at 469, 12 So. at 519. Matthews reinforces the proposition that personal rights of the former owner do not pass with the property in an act of sale unless specifically assigned or sub-rogated to the new owner.

|inThus, even when property is conveyed during the term of a lease, the purchaser cannot recover from the lessee for damages accruing prior to the sale. See also Prados v. South Central Bell Tel. Co., 329 So.2d 744 (La.1975). In Matthews, 12 So. 518, because the deed of sale also conveyed the lease and the seller’s rights in the lease to the new owners, they would have a right of action against the lessee, but only for damages arising after the date of sale.

In the present case, the acts of sale fail to transfer any pre-acquisition rights to the new owners for damages caused by the lessee prior to the act of sale and specifically withhold the minerals and all leases from the act of sale. Lagneaux reserved the rights for himself in 2003, and in 2005 Primeaux, who never obtained them from Lagneaux, referenced the mineral and lease reservations in its sale to the Boones and pointed the Boones to the recorded prior act of sale from Lagneaux. Accordingly, the Boones knew that the land was encumbered by reserved mineral rights and leases. Under the subsequent purchaser doctrine, they do not have a right of action to sue the lessee for damages occurring prior to their acquisition of the property.

The Assignments

In September of 2012, the Boones obtained assignments from former owners, Lagneaux and Primeaux, in attempts to obtain the right to sue EnerQuest for damages that the act of sale did not convey. We find that the assignments also fail to provide the plaintiffs with a right of action for pre-acquisition damages against EnerQuest. The Lagneaux assignment attempts to assign all personal and tort causes of action, including inherited rights, to the Boones. Like the act of sale, however, the assignment specifically excludes mineral and contractual rights and Inleases. The Lagneaux assignment states in the fourteenth paragraph (emphasis added): “Nothing herein shall affect and this Agreement specifically excludes the mineral rights and/or contractual rights, including, but not limited to, leases, of the Parties.” Lagneaux sold the property to Primeaux in March of 2003. If Lagneaux had taken a lower price from Primeaux because of damage caused to the land by EnerQuest, Lag-neaux would have known this at least by the time of sale. Thus, under La.Civ. Code art. 2315, and under La.Civ.Code art. 3493 specifically governing damage to immovable property, Lagneaux had one year, or until March of 2004 to bring suit against EnerQuest. Therefore, in 2012, Lagneaux had no right of action in tort to assign to the Boones because Lagneaux’s tort claims had prescribed eight years earlier.

With regard to the assignment by Pri-meaux, also in September 2012, Primeaux could not assign contractual rights under the leases because Primeaux did not acquire contractual rights upon its purchase from Lagneaux in 2003. If Primeaux thought it had to take a lower sale price from Boone in August of 2005 because of damage by a lessee, it would have acquired that knowledge at least by the time of sale and would have had a year, or until August of 2006, to bring its tort suit. However, Primeaux did not take a lower price; since it paid only $105,000.00 for the property in 2003 and sold it to the Boones for $120,000.00 in 2005, there had been no diminution of value. In any event, when Primeaux executed the assignment in 2012, it had no right of action to assign to the Boones. Accordingly, the Boones did not obtain any tort or contract rights from the previous owners via the assignments to sue for damages caused prior to the act of sale in 2005.

112The Boones signed affidavits stating that Lagneaux and Primeaux intended to assign contractual rights to the Boones in the assignments where they referenced all rights and causes of action. That is not what these assignments, the acts of sale, or any other leases or documents in the record show. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La.Civ.Code art. 2046. When EnerQuest asserted in its motion for summary judgment that the Boones would not be able to prevail on its claims for damages against EnerQuest, the burden shifted to the Boones to show that they could prevail at trial:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

The only evidence adduced by the Boones are the eleventh-hour assignments which do not convey any valid tort or contract claims to the Boones. Accordingly, we find that the assignments do not provide the Boones with a right of action in tort or in contract to sue EnerQuest for damages to the property prior to the Boones acquisition of the property.

11SStipulation Pour Autrui

The Boones assert that their contract claims are still valid because, while not actual parties, they are third party beneficiaries to the surface lease that Lag-neaux granted to EnerQuest in 2002, pursuant to La.Civ.Code art. 1978. They cite Hazelwood Farm, Inc. v. Liberty Oil & Gas Corp., 02-266 (La.App. 3 Cir. 4/2/03), 844 So.2d 380, writs denied, 03-1585 and 03-1624 (La.10/31/03), 857 So.2d 476. There, the original 1926 lease provided (emphasis added): “Grantee shall be responsible for all damages caused by his operations.” This language was found to create a stipulation pour autrui in favor of the Hazelwood corporation, which acquired ownership in 1991 (Hazelwood was owned by the Edmunston family who had owned the property since 1968). The court in Hazelwood Farm, Inc., 844 So.2d 380, explained that this finding was the law of the case based upon a prior appeal, which more thoroughly analyzed the issue.

More specifically, in Hazelwood Farm, Inc. v. Liberty Oil & Gas Corp., 01-345 (La.App. 3 Cir. 6/20/01), 790 So.2d 93, writ denied 01-2115 (La.7/26/01), 794 So.2d 834, the plaintiff was found to have no right of action as a party to, or as an assignee of, a mineral lease because, as here, the vendor before the plaintiffs vendor had reserved the mineral rights to himself. The court did, however, find that the language of the original lease, obligating the grantee/lessee to pay for all damages caused by its operations, conferred a benefit on the current owner, Hazelwood:

Our jurisprudence recognizes several factors which must be considered in determining whether a contract provides 114for a stipulation pour autrui. These factors are enumerated in Andrepont v. Acadia Drilling Co., 231 So.2d 347, 351, 255 La. 347 (1969) as:
(1) The existence of a legal relationship between the promisee and the third person involving an obligation owed by the promisee to the beneficiary which performance of the promise will discharge; (2) the existence of a factual relationship between the prom-isee and the third person, where (a) there is a possibility of future liability either personal or real on the part of the promisee to the beneficiary against which performance of the promisee (sic) will protect the former; (b) securing an advantage for the third person may beneficially affect the promisee in a material way; (c) there are ties of kinship or other circumstances indicating that a benefit by way of gratuity was intended. See Smith, Third Party Beneficiaries in Louisiana: The Stipulation Pour Au-trui, 11 TuLL.Rev. 18, 58 (1936).

Hazelwood Farm, Inc., 790 So.2d at 100.

The Hazelwood court did not specifically apply the individual factors above, but rather focused upon language of the lease in Andrepont, and the almost identical language in the lease in Hazelwood. In An-drepont, a share crop tenant and the landowner entered into a verbal lease wherein the landowner allowed the tenant to farm soybeans on the land in return for twenty percent of his crop. Later, the owner also granted the oil and gas defendant a lease; but the owner negotiated broader language so that the final version of the lease protected not just the owner/lessor but also protected the farmer/lessee, Mr. An-drepont:

The printed form used as the oil and gas lease initially read, “The Lessee shall be responsible for all damages to timber and growing crops of the Lessor caused by Lessee’s operations.” Id. at 349. The words “to timber and growing crops of Lessor” were then deleted so that | iBthe lease read “The Lessee shall be responsible for all damages caused by Lessee’s operations.” Id.
Upon reviewing this language, the Louisiana Supreme Court found it to create a stipulation pour autrui. In doing so, the court noted, “[Andrepont] is seeking to enforce a benefit stipulated in his favor by the landowner lessor as a condition of a commutative contract between the landowner lessor and the oil and gas lessee. Defendants, as assignees of the oil and gas lessee, are, therefore, parties to the contract in which the stipulation is a condition....” Id. at 350. Therefore, the court reasoned that. An-drepont, as beneficiary of the stipulation, had a direct right of action against the lessee to recover his damages.

Hazelwood Farm, Inc., 790 So.2d at 100-01.

Because the language in the lease was strikingly similar to that in Andrepont, the Hazelwood court interpreted-the lease as providing a stipulation pour autrui in favor of Hazelwood. Likewise, in Magnolia Coal Terminal v. Phillips Oil Company, 576 So.2d 475, 477 (La.1991) (emphasis added), also cited by the Boones, the lease stated, “Lessee shall pay for all damages caused by Lessee’s operations....”

Magnolia Coal, 576 So.2d 475, a highly distinguishable case, did not discuss stipulation pour autrui but did allow the new landowner, Magnolia, to recover against the current lessee, Phillips Oil, quoting the above language from the mineral lease retained by the original owners. The suit was for continuing damage caused by the improper plugging of a well that was leaking a gallon of oil per hour. During Magnolia’s purchase negotiations, Phillips’ predecessor, Aminoil, which later merged with Phillips, took responsibility for plugging the well and cleaning the property; and it agreed in writing to take care of the problem. Two years after Magnolia spent almost $12 million to purchase and begin developing the 2,200-acre tract, Aminoil abandoned its efforts, but oil pockets [ ^reappeared two months later. Magnolia lost its financial support on an $86 million terminal and stopped construction due to contract failures. The Louisiana Supreme Court awarded Magnolia $2.1 million for surface damages.

In discussing jurisdictional conflicts, where the commissioner of conservation had wrongly found the well to have been properly plugged, the court characterized Magnolia’s action for property damages as a private and contractual cause of action not in the purview qf the mineral code. The court then stated: “Magnolia’s right to recover damages is a property right arising out of the original lease and attached to the property.” Id. at 483. The court cited Andrepont, 231 So.2d 347, for this proposition. Since Andrepont does not contain this language, we surmise that it is a reference to the landowner’s right to receive its part of the damages before or separately from the damages paid to the share cropper, Andrepont, by the oil and gas lessee, pursuant to La.R.S. 9:3204. In spite of the contextual dissimilarities, it is this quote from Magnolia Coal that the plaintiffs have cryptically and improvidently pulled from the case without further analysis and without reconciling it with Eagle Pipe twenty years later.

Here, the defendant EnerQuest, predecessor of the defendant Petro “E,” did not agree to do anything on the property, but rather, completely vacated the property and sold all of its assets and obligations a year before the Boones purchased the property, as discussed fully below. Moreover, the Boones did not introduce the mineral lease for a comparison of the language. And here, there was no continuing damage by EnerQuest, as a continuing tort is one in which the tortfeasor “perpetuates the injury through overt, persistent, and ongoing acts.” Eagle Pipe, 79 So.3d at 279. We find no support for the plaintiffs’ position in the Magnolia Coal case.

17The only lease in the record between a former owner and EnerQuest, is the 2002 surface lease granted by Lagneaux before its sale of the property to Primeaux in 2003. The surface lease that Lagneaux granted to EnerQuest did not contain language similar to the above language or address damages in any manner. It allowed EnerQuest to use the surface of the land for constructing and accessing its facilities and obligated EnerQuest to remove its fixtures and restore the land as nearly as practicable to its original condition within six months after the lease expired. It acknowledged the receipt of adequate and sufficient consideration for this access, presumably the lease payments and any other income from the minerals by which Lagneaux would profit when EnerQuest brought the product to the surface. It extended the provisions of the lease to the heirs, devisees, executors, administrators, representatives, successors, and assigns of the lessor and the lessee. However, the provisions it extended did not include money damages or property damages.

Nor could the parties have intended in 2002 for a benefit to inure to a future purchaser who owned no mineral rights and who stood to gain nothing by an oil and gas lessee’s presence on the land. There could not be an acknowledgment of consideration received in such scenario. Moreover, under the Andrepont factors, there was no legal or factual relationship between EnerQuest and the Boones. Mr. Boone admitted in his deposition that he had never met Lagneaux.

The intention of the parties and the language regarding damages is paramount in the jurisprudence on stipulations pour autrui. In Broussard v. Northcott Exploration Co., Inc., 481 So.2d 125, 127 (La.1986), the Louisiana Supreme Court found no stipulation pour autrui in favor of the plaintiff even though an attempt to modify the language, similar to Andrepont, was made. The |18court reiterated that a stipulation pour autrui exists when some advantage to a third person is created as a condition or consideration of a commutative contract:

In order to determine if a stipulation exists, we must look to the intention of the parties at the time the mineral lease was negotiated. This can best be accomplished by comparing the standard damage clause found in the original version of the mineral lease to the modified version agreed to by the parties. The unmodified version of the Damage Clause read as follows:
“The Lessee shall be responsible for all damages to timber and growing crops of Lessor caused by Lessee’s operations.”
In negotiating the mineral lease the parties modified the phrase “for all damages to timber and growing crops” to read “for all surface damages.” However, they did not modify the mineral lease to expand [the defendant/lessee’s] liability beyond the “damages of the lessor.” For this reason, we can easily distinguish Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347 (1969), and Hargroder v. Columbia Gulf Transmission Co., 290 So.2d 874 (La.1974).

Likewise, in LeJeune Bros., Inc. v. Goodrich Petroleum Co., 06-1557, p. 8 (La.App. 3 Cir. 11/28/07), 981 So.2d 23, 29, writ denied, 08-298 (La.4/4/08), 978 So.2d 327, the court compared the lease at issue to the lease in Broussard and found no stipulation pour autrui in favor of the plaintiffs:

As in Broussard, the damage clause in the Baez Lease was similarly modified. The original damage clause ... read, “The Lessee shall be responsible for all damages to timber and growing crops of Lessor caused by Lessee’s operations.” However, in the final version the words “timber and growing crops of’ were struck out, and the clause read “The Lessee shall be responsible for all damages to Lessor caused by Lessee’s operations.” Thus, just as in Broussard, the damages permitted by the Baez Lease were limited to the damages suffered by the Lessor, Mr. Baez. The trial court did not err in finding LeJeune Brothers was not a third party beneficiary of the Baez Lease.

|1flIn Wagoner v. Chevron USA Inc., 45,507 (La.App. 2 Cir. 8/18/10) 55 So.3d 12, writ denied, 10-2773 (La.3/2/12), 83 So.3d 1032, which we find particularly illustrative due to the factual similarities involving the same legal issues as those herein, the second circuit found no stipulation pour au-trui in favor of the current owner pursuant to a former lessee’s mineral lease with a former owner. Based upon the subsequent purchaser doctrine, finding no conveyance of rights in the acts of sale, and finding no language conferring third party rights such as the language in Magnolia Coal Terminal, the Wagoner court found that the plaintiff had no right to sue for pre-acquisition damages under the mineral leases obtained by three former oil and gas lessees. The assignees/lessees who were still operating on the land after the plaintiffs purchase of the property were not dismissed in the judgment affirmed.

More recently than Andrepont, the Louisiana Supreme Court has identified three criteria for determining whether contracting parties have provided a benefit for a third party:

1) the stipulation for a third party is manifestly clear; 2) there is certainty as to the benefit provided the third party; and 3) the benefit is not a mere incident of the contract between the promisor and the promisee....
The most basic requirement of a stipulation 'pour autrui is that the contract manifest a clear intention to benefit the third party; absent such a clear manifestation, a party claiming to be a third party beneficiary cannot meet his burden of proof. A stipulation pour autrui is never presumed. The party claiming the benefit bears the burden of proof.

Joseph v. Hospital Service Dist. No. 2 of Parish of St. Mary, 05-2864, pp. 8-9 (La.10/15/06), 989 So.2d 1206, 1212 (citations omitted) (footnote omitted); La.Civ. Code art. 1978; La.Civ.Code art. 1831; see also Eagle Pipe and Supply, Inc., 79 So.3d 246. For the reasons sated, we find that the plaintiffs have not met their burden of proving that they are third party beneficiaries under the contracts as asserted.

The 2002 Surface Lease

The Boones argue that the 2002 surface lease between Lagneaux and EnerQuest had a ten-year term; that it was effective until 2012 which included the ownership of the Boones who purchased the property in August, 2005; and that there was no evidence that it was assigned to another operator. We disagree. As previously discussed, Lagneaux withheld its leases and contractual rights from the assignment to the Boones, and in any event the surface lease did not provide for damages. It only provided for restoration which was not due until six months after the lease expired. Also as discussed, the Boones were not parties to the lease, and the lease did not provide a stipulation pour autrui in favor of the Boones. Moreover, the lease had an effective date of August 1, 2002, meaning that it would have expired as of August 1, 2012, and the Boones did not obtain the assignments until late September, 2012. Accordingly, “it was impossible to transfer rights to an assignee under an expired ... lease.” See LeJeune Bros., Inc., 981 So.2d at 28.

In addition to there being no valid assignment from Lagneaux, the record is clear that EnerQuest ceased its operations on the property as of April 30, 2004, and sold all of its physical and contractual rights, including its leases, to Petro “E.” On April 17, 2004, EnerQuest executed an “Assignment and Bill of Sale” to Petro “E” of all of its rights, title and interest in the subject property. The sale also included all personal property, fixtures, facilities, tanks, pumps, equipment, machinery, wells, wellheads, licenses, permits, easements, rights of |2iway, leases, contracts, operating and other agreements, “whether of record or not,” relating to the properties. This sale was effective on May 1, 2004.

The EnerQuest conveyance to Petro “E” included (emphasis added) “[a]ll rights incident to the Properties, including without limitation, all rights with respect to the use and occupation of the surface of and the subsurface depths under the Properties.” The sale and assignment obligated Petro “E” to plug and abandon all wells as required by regulatory authorities, to level all dumps, fill in all pits, remove all debris, and otherwise restore the surface of the land as required in the mineral servitude or leases, and to comply with all applicable orders and regulations. Thus, the surface lease rights and obligations were sold and assigned to Petro “E,” and EnerQuest had no presence on the property and no interest in the property, physical, contractual, or otherwise, after April 30, 2004, over a year before the plaintiffs purchased the property on August 26, 2005.

The Boones argue that EnerQuest operated on the property until 2004, and that a personal action has a liberative prescription of ten years under La.Civ.Code art. 3499. That article states: “Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.” La.Civ.Code art. 3499. This article follows numerous other articles providing for shorter, more specific prescriptive periods, including previously discussed article 3492 which governs claims for property damage and provides a one-year prescriptive period. With regard to a ten-year prescriptive period for a personal action arising in contract, we have already found that the Boones have failed to introduce any evidence of a contract by EnerQuest that grants them a right of action against EnerQuest. Accordingly, the Boones have not produced evidence that provides them a right of action in tort or contract against EnerQuest.

|9i¿Relation Back

In September 2012, two and a half years after filing suit in May 2010, the Boones filed a second supplemental petition. The petition attached the newly obtained assignments, attempted to create rights in the Boones as assignees of the former owners, reiterated the earlier causes of action, and added causes of action for fraud, conspiracy, concerted action, and concealment. For the first time, it alleged a cause of action under the Louisiana Environmental Quality Act, LaJEt.S. 30:2271-2281. The Boones assert that the new petition related back to the original petition in 2010. We must disagree.

Even if the September 2012 assignments from the previous owners had conferred valid and timely rights, the assignments arose two and a half years after the original petition was filed in May of 2010. As discussed, the tort rights had prescribed before the original petition was filed, and the assignments did not confer a right of action in contract. The rights sought to be bestowed in the assignments were not exi-gible at the time of suit in 2010. Therefore, the claims in the new petition were supplemental, not amending, no matter how the caption of the petition reads, and the relation back of La.Code Civ.P. art. 1153 applies only to amending petitions. Smith v. Cutter Biological, 99-2068 (La.App. 4 Cir. 9/6/00), 770 So.2d 392.

An “untimely filed original petition does not support the relation-back of a new cause of action[.]” Allen v. State, Dept. of Public Safety & Corrections, 12-430, p. 6 (La.App. 3 Cir. 11/7/12), 107 So.3d 106, 110 (quoting Cutter Biological, 770 So.2d at 413). Nor does an original petition filed by a party without a right of action to file it. See Naghi v. Brener, 08-2527 (La.6/26/09), 17 So.3d 919.

In TCC Contractors, Inc. v. Hospital Service Dist. No. 3 of Parish of Lafourche, 10-685, p. 22-23 (La.App. 1 Cir. 12/8/10), 52 So.3d 1103, 1116-17, the first circuit found that claims arising via an assignment did not become exigible prior to the date of the assignment:

[O]ur law, as interpreted in the jurisprudence, holds that in order for the doctrine of relation back to apply and to circumvent the effect of prescription, a new cause of action asserted in an amended petition (1) must have been in existence at the time the original petition was filed; (2) must have been vested in the plaintiffs at that time; and (3) must arise out of “the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” See La. C.C.P. art. 1153.
Because a civil action by definition can be brought only by a person having a right of action, it stands to reason that an action instituted by a person determined to have no right of action cannot serve as an “action” sufficient to interrupt prescription. See La. C.C.P. art. 681 and La. C.C. art. 3462-The relation back theory embodied in La. C.C.P. art. 1153 assumes that there is a legally viable claim to which the pleading can relate back. Naghi v. Brener, 08-2527, p. 10 (La.6/26/09), 17 So.3d 919, 925.... Because of the “strictly personal” character of the right to file suit, the plaintiffs’ right to do so can be given legal effect only from the effective date of the assignment, and the assignment could not retroactively cure the initial absence of a right of action by the plaintiffs.

| ^Accordingly, the claims asserted in the Boones’ second supplemental petition do not relate back to the original petition. Moreover, as fully discussed above, the assignments do not confer existing rights. Additionally, the Boones have not shown that they had an exigible claim under La. R.S. 30:2276 at the time of the original petition or at the time the LEQA claim was first alleged in the second supplemental petition. Contrary to the allegations in the petitions, Mr. Boone testified in his deposition on May 8, 2013, that he had not incurred any remediation costs as required by La.R.S. 30:2276(G)(3). See Margone, LLC v. Addison Resources, Inc., 04-70 (La.App. 3 Cir. 12/15/04), 896 So.2d 113, writ denied, 05-139 (La.3/24/05), 896 So.2d 1039. Further contrary to the Boones’ assertions in brief, the original and first supplemental petitions do not assert soli-dary liability, and the additional claims and causes of action in the second supplemental petition do not relate back to the original petition.

V.

CONCLUSION

Based upon the foregoing, we affirm the trial court’s judgment granting the motion for summary judgment and exception of prescription in favor of EnerQuest Oil & Gas, LLC. Costs of this appeal are assessed to the plaintiffs, Carlos and Lori Boone.

AFFIRMED.

      . A real obligation is transferred to the universal or particular successor who acquires the movable or immovable thing to which the obligation is attached, without a special provision to that effect.
      But a particular successor is not personally bound, unless he assumes the personal obligations of his transferor with respect to the thing, and he may liberate himself of the real obligation by abandoning the thing. La. Civ. Code art. 1764.

      . "A contracting party may stipulate a benefit for a third person called a third party beneficiary. Once the third party has manifested his intention to avail himself of the benefit, the parties may not dissolve the contract by mutual consent without the beneficiary’s agreement.” La.Civ.Code art. 1978.

      . The Boones’ characterization of their status change as one of a simple change in capacity and therefore analogous to Giroir v. South Louisiana Medical Center, Div. of Hospitals, 475 So.2d 1040 (La.1985), is misplaced. The wrongful death claim that was allowed to relate back in Giroir had accrued prior to the time of the filing of the original petition.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    Tammy Renea Martin HARRUFF, et al. v. Richard B. KING, et al.
    No. 13-940.
    Court of Appeal of Louisiana, Third Circuit.
    May 14, 2014.
    Rehearing Denied July 9, 2014.

      Henry W. Bethard, V, Bethard & Be-thard, L.L.P., Coushatta, LA, for Plaintiffs/Appellees: Tammy Renea Martin Harruff, Amy Lynn Bilodeau, Edgar Ca-son.
    Billy R. Pesnell, J. Whitney Pesnell, W. Alan Pesnell, The Pesnell Law Firm, Shreveport, LA, for Defendants/Appellants: Renee Poole, King Kyle King.
    Ronald E. Corkern, Jr., Corkern & Crews, Natchitoches, LA, for Defendants/Appellants: Renee Poole King, Kyle King.
    William F. Kendig, Rice & Kendig, Shreveport, LA, for Defendants/Appellants: Renee Poole King, Kyle King.
    Edwin Henry Byrd, III, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, Shreveport, LA, for Plaintiffs/Appellees: Tammy Renea Martin Harruff, Edgar Cason, Amy Lynn Bilo-deau.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

I,Defendants appeal the judgment of the trial court rescinding the sale of immovable property on the basis of lesion beyond moiety. For the reasons set forth herein, we reverse.

ISSUE

This case presents the question of whether Louisiana law allows for the inclusion of the speculative value of mineral interests or rights in and to immovable property in determining the fair market value of such property for the purpose of rescinding the sale of the property on the basis of lesion beyond moiety.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Tammy Renea Martin Harruff and Amy Lynn Bilodeau (hereafter the Sisters), are siblings and the heirs of decedent, Bobby Carlisle. Edgar Cason, also a PlaintiffAppellee, is the subsequent purchaser of the subject property as will be more fully discussed herein. The Sisters inherited an undivided interest in two tracts of land located in Natchitoches and Red River Parishes. The property is situated within the area of the Haynesville Shale.

Approximately one year after the inheritance, the Sisters sold their undivided interest in the two tracts to Defendants, Richard King, Renee King, and Kyle King (Kyle). On May 26, 2009, the Sisters entered into a buy and sell agreement with Defendants regarding the property (King buy and sell agreement). On July 21, 2009, the Sisters and Defendants executed a cash sale deed (King deed), | ^transferring ownership of the Sisters’ interests in the property to Defendants for the amount of $175,000.00. The Sisters’ undivided interests conveyed in the King deed included all timber and minerals. Defendants, two of whom are attorneys, prepared both the buy and sell agreement and the cash sale document. The description of the property in the buy and sell agreement differs from the description in the King deed. The description in the buy and sell agreement was taken from summaries contained in the tax assessor’s records for each parish. The King deed identifies the property as being located in Range 9 wherein the property at issue is located in Range 8. Defendants contend the misidentification was simply a typographical error and that the same inadvertent error had actually happened previously and was subsequently corrected.

Approximately six months after the execution of the King buy and sell agreement, the Sisters sold the Natchitoches Parish tract to Plaintiff, Cason, for $375,000.00. On November 80, 2009, Cason and the Sisters entered into a buy and sell agreement (Cason buy and sell agreement) and, on the same day, executed a cash sale deed (Cason deed) relative to their undivided interest in the Natchitoches Parish property. Thereafter, Plaintiffs filed a lawsuit, alleging that the sale of the property to Defendants should be rescinded due to lesion beyond moiety. Plaintiffs also sought judgment to quiet the title on the Natchitoches Property subsequently sold to Cason. After filing their original action, Plaintiffs amended their petition, alternatively seeking to rescind the sale to Defendants based on fraud allegedly committed by Defendant, Kyle. Defendants answered Plaintiffs’ petition and reconvened, alleging bad faith on the part of the sellers arid seeking to be declared the owners of the Sisters’ undivided interests in the two parcels of immovable ^property. Defendants also sought a reformed deed and a judgment recognizing that the Cason deed is null and void.

Prior to trial, the trial court was advised that a lawsuit had been filed in federal court by Defendants against the Sisters based on diversity of citizenship, fraud, and the same set of facts as presented in the trial court. Diversity was established insofar as the Sisters are domiciled in Waldo, Arkansas. Cason, a Louisiana resident, was not named as a Defendant in the federal suit. The Sisters were not served with the federal lawsuit until approximately fifteen months after their original petition was filed in the present case. In its reasons for ruling, the trial court noted the filing of the federal action indicating it was “important to include mention of this suit, as it appears to this Court to have impacted the handling and trying of the present case in state court, as well as the motives and credibility of the parties.”

After trial on the merits, the trial court granted a rescission of the sale on the basis of lesion beyond moiety. Consistent with La.Civ.Code art. 2591, the trial court judgment provided Defendants with thirty days to exercise the option of supplementing their original purchase price in the sum of $687,061.08 plus legal interest to retain title to the Sisters’ undivided interest in the property at issue.

In its written reasons for ruling the trial court stated that, during the time of the sale of the property at issue, other mineral deeds and leases around the property ranged from approximately $5,000.00 to $25,000.00 per acre, depending on the location of the property to the center of the Haynesville Shale.

Defendants appeal, alleging six assignments of error:

(1) The trial court “committed legal error and manifest error by allowing the valuation of speculative, un-proven, non-|producing,4 un-leased, un-unitized, and untested gaseous minerals”;
(2) The trial court committed legal error and manifest error by valuing the property as a mineral-producing property rather than a recreational property by failing to recognize the problems in the Coutret report; and when it valued the property in a state different than it was in at the time of the challenged transaction;
(3) The trial court committed an error of law and manifest error in its finding of fact when it mixed the valuation reports of two experts and added a purported mineral valuation to that report;
(4) The trial court committed an error of law when it denied and dismissed Defendants’ claim to have the Cason deed declared null and void and to reform the King deed;
(5) The trial court committed legal error and manifest error in its ruling on Plaintiffs’ fraud claims; and
(6) The trial court committed legal error in admitting and excluding certain evidence.

STANDARD OF REVIEW

“Appellate review of a question of law is simply a decision as to whether the trial court’s decision is legally correct or incorrect.” Dugan v. Gen. Servs. Co., 01-511, p. 3 (La.App. 3 Cir. 10/31/01), 799 So.2d 760, 763, writ denied, 01-3327 (La.3/15/02), 811 So.2d 942. When a “trial court’s decision was based on its erroneous application of law ... its decision is not entitled to deference by the reviewing court.” Id. When an appellate court finds a reversible error of law, the appellate court “must redetermine the facts de novo from the entire record and render a judgment on the merits.” Id.

Findings of fact are reviewed under the manifest error rule. Cormier v. Comeaux, 98-2378 (La.7/7/99), 748 So.2d 1123. When the review of factual | ^findings of the trial court are at issue, the following two-part analysis applies in order to reverse the fact finder’s determinations: (1) a reasonable factual basis must not exist in the record for the finding of the trial court and (2) the record must establish that the finding is manifestly erroneous or clearly wrong. Id. Great deference is given to the trial court’s determination of the credibility of witnesses, except where “documents or other objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable finder of fact would not credit the witness’s story.” Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989).

LAW

Rescission for lesion beyond moiety is codified at La.Civ.Code art. 2589, which provides:

The sale of an immovable may be rescinded for lesion when the price is less than one half of the fair market value of the immovable. Lesion can be claimed only by the seller and only in sales of corporeal immovables. It cannot be alleged in a sale made by order of the court.
The seller may invoke lesion even if he has renounced the right to claim it.

Assignment of Error Number One

In their first assignment of error, Defendants contend that the trial court “committed legal error and manifest error by allowing the valuation of speculative, unproven, non-producing, un-leased, un-unit-ized, and untested gaseous minerals in this case.”

The trial court found that the fair market value of the property at the time of the execution of the King buy and sell agreement was $862,061.08. The trial |f,court noted that Defendants paid $175,000.00 for the property. Based upon its value of the property, the trial court concluded that the sale was lesionary and rescinded the sale accordingly.

In its reasons for ruling, the trial court cited the Louisiana Supreme Court’s decision of Jones v. First National Bank, Ruston, Louisiana, 215 La. 862, 41 So.2d 811 (1949), wherein the supreme court held that mineral interests or rights are to be included in the value of the property, so long as both the land and the mineral interests are sold together. In Jones, the plaintiff was credited $7.72 per acre upon transferring his property to the bank in satisfaction of a debt. The evidence in Jones established that other landowners in the area were paid as much as three times more per acre for their land and minerals than the credit given the plaintiff. The evidence also showed that the bank executed two mineral leases on the plaintiffs property shortly after the transfer wherein the bank was paid $10.00 per acre exclusive of delay rentals, resulting in the bank realizing $880.00 in the subsequent two years.

In the instant matter, the trial court stated in its reasons for ruling:

The calculation of the value of the Property for purposes of lesion beyond moiety should include the value of the un-severed mineral rights as long as the transaction is not a transfer of mineral rights alone.
A landowner’s right to minerals is a part of the bundle of rights as the owner of a corporeal. The Court finds that unsevered mineral interests or rights can and should be used to calculate the fair market value of the Property as a whole. Unsevered mineral interests, or rights, are owned as a part of the ownership of the land and constitute a part of the corporeal immovable. If they increase the value of the land alone, they should be considered.

|7We agree with the trial court that Jones stands for the proposition that mineral rights are included in the value of the property as long as both the land and the mineral interests are sold together. In Jones, the plaintiffs met their burden of proof by providing substantial evidence regarding the value of the property at the time of the transfer.

A seller seeking to rescind a sale on the basis of lesion must prove the value of his property by “clear and exceedingly strong” evidence. Pierce v. Roussel, 227 La. 438, 451, 79 So.2d 567, 571 (1955) (quoting Morris v. Kleinpeter, 197 La. 758, 2 So.2d 203 (1941)). The clear and convincing standard “requires that the existence of the disputed fact be highly probable, that is, much more probable than its nonexistence.” Louisiana State Bar Ass’n. v. Edwins, 329 So.2d 437, 442 (La.1976) (quoting Sanders, The Anatomy of Proof in Civil Actions, 28 La.L.Rev. 297, 304 (1968)). The evidence presented by Plaintiffs herein does not meet the eviden-tiary standard of “clear and exceedingly strong.”

In the case at bar, Plaintiffs rely on the testimony of their expert, Henry Cou-tret, to prove the fair market value of the mineral interests of the property at issue. If Coutret’s testimony is not accepted by the trial court, the Plaintiffs action for lesion must fail. Coutret was asked to explain the factors he would use to determine the fair market value on an undeveloped mineral tract. Coutret testified that “[t]he value of any mineral tract developed or undeveloped is based on the possibility of future royalty revenue or if un-leased, the possibility of a lease bonus ... for an undeveloped tract, of course that would be the case.” (Emphasis added.) On cross-examination of Coutret, the following colloquy took place:

Q. Now your report relies on a number of assumptions....
|SQ. And you described many of those assumptions ... earlier when you talked to Mr. Bethard. One of those assumptions is that the property had a 90% chance of being leased within two years, correct?
A. Correct.
Q. And then you made assumptions based on Haynesville production from other wells and I remember you testified that you discounted some of those things, took into [account] some risk factors and that sort of thing. But, all your assumptions fall back to one thing; they assume a production of the gas from that property, correct?
A. They’re based on the assumption of production. But actually what we’re calculating is the fair market value of that mineral ownership at the time. It’s based on the potential production once it’s corrected with a probability it’ll be drilled and actually be completed. So I’m not ... it’s not based on the production.
Q. You, your report measures a particular bonus correct? An assumed bonus
A. Correct. Yes. Correct.
Q. ... on a, you basically have a report that has an assumed lease does it not?
A. That’s correct.
Q. It assumes a bonus and it assumes a production that results in a royalty, correct?
A. That’s correct.
Q. That is how you came to your valuation numbers.
A. That is the economic method or cash flow method. That is correct.
Q. And if any one of those assumptions doesn’t bear out, then your value goes to zero, does it not?
A. Well because a probabilistic approach has been taken to this, ... if it doesn’t bear out at all, ... if it’s never produced, the value would be zero. But nobody thought it was gonna be, go to zero at this point in time. There was a reasonable expectation of making a profit and that’s why these minerals have value. And that is the, what I was [ n trying to estimate, of course was fair market value or market value, the reasonable expectation of market value if you sold those minerals at that time.

Coutret’s testimony reflects that his methodology for determining the value of Plaintiffs’ mineral interests is based upon assumptions and possibilities. His testimony is not “clear and exceedingly strong” evidence that is required to prove lesion beyond moiety. His testimony is further called into question considering that Plaintiffs’ property is situated outside of the active portion of the Haynesville Shale and that Plaintiffs had not even been approached to lease their mineral interests.

The speculative nature of minerals has long been recognized by our courts. Wilkins v. Nelson, 155 La. 807, 99 So. 607 (1924). Once landowners, who leased their property for mineral exploration in the Haynesville Shale area, became aware of the shale’s value, they filed lawsuits against the lessees. The lawsuits raised various issues including fairness of the contracts, signing bonus amounts, error as to the cause of such contracts, and fraud due to the failure of the mineral lessees’ to share their knowledge of the shale with the landowners. Many of those cases were decided against the landowners. Since the issue in those cases dealt with only the sale of mineral interests and such sales are not subject to rescission for lesion, many of those claims failed. See La.R.S. 81:17.

Specifically, in Cascio v. Twin Cities Development, LLC, 45,634 (La.App. 2 Cir. 9/22/10), 48 So.3d 341, fraud and error were alleged by the plaintiffs as to the cause of their mineral lease. The court explained that while the mineral lessee had knowledge “of the potential existence of the Haynesville Shale below plaintiffs’ property ... other uncertainties ... remained.” Id. at 344. The second circuit concluded that “no finite determination” of the existence and value of minerals Imfound on the property at issue could be made because of the “speculative nature of mineral exploration.” Id.

The same principle regarding the “speculative nature of mineral exploration” applies here that applied in Cascio. Louisiana Revised Statutes 31:6 states that:

Ownership of land does not include ownership of oil, gas, and other minerals occurring naturally in liquid or gaseous form, or of any elements or compounds in solution, emulsion, or association with such minerals. The landowner has the exclusive right to explore and develop his property for the production of such minerals and to reduce them to possession and ownership.

In this case, plaintiffs failed to prove the value of their minerals beneath their property by clear and exceedingly strong evidence. Coutret testified that placing a value on the minerals on a tract of land which has no producing well using thé “cash flow” method is based on assumptions and a significant degree of speculation. To reach a value, Coutret had to assume the property would be leased and that any well thereon would be successful as well as consider certain probability factors regarding the potential drilling of wells and the potential production from the wells. Coutret based his value on an assumption of production which clearly illustrates what our jurisprudence has recognized as “the speculative nature of mineral exploration.” Cascio, 48 So.3d at 343 (quoting Thomas v. Pride Oil & Gas Props., Inc., 633 F.Supp.2d 238 (W.D.La.2009)).

Additionally, it should be noted that the property at issue lies at the southeastern edge of the existing shale production. At the time of trial of this case, there had not been a lease executed on the property nor were there any offers to lease the property. There were no wells drilled, and there had been no production. Again, the facts of this case point to no other conclusion than Coutret’s testimony was pure speculation laced with hopeful thinking.

| nCoutret relied not only on the assumption that gas might be produced from the property, but also on the value of the gas produced. The gas market fluctuates unpredictably due to any number of contingencies not within the control of the producers or consumers. It is not possible to predict with any reasonable degree of accuracy the value of future gas production because the value of the gas will be dictated by the market at the time of production. Thus, we conclude that Coutret’s value of the mineral rights or interests was determined through unsubstantiated assumptions and rank speculation. Further, we find that the trial court erred in relying on Plaintiffs’ expert value determination and, in doing so, presumptuously inflated the value of Plaintiffs’ interest in the property.

In Louisiana, “[t]he vendor has the burden of proving lesion beyond moiety, and the evidence to establish this fact must be particularly strong and convincing — of such a nature as to exclude speculation and conjecture.” Dosher v. Louisiana Church of God, 225 La. 21, 25, 71 So.2d 868, 870 (1954) (citations omitted). The expert testimony regarding the value of minerals not yet produced was pure speculation. Landowners do not own fu-gacious minerals. It is true that the landowner’s right to explore for minerals does have a value; however, the record is devoid of evidence upon which this court can determine that value. Thus, the trial court erred in adding to the appraisal value of the property an additional sum for the speculative value of unproduced minerals.

We further note that La.R.S. 31:17, which provides that “[a] sale of a mineral right is not subject to rescission for lesion beyond moietyU” is inapplicable to the matter before us. Nevertheless, the reasoning involved as to the ability to evaluate the value of unproduced minerals is the same. As explained in Fernandez v. Wilkinson, 158 La. 137, 147-48, 103 So. 537, 541 (1925) (citing Wilkins v. Nelson, 155 La. 807, 99 So. 607 (1924)), the nature of minerals is such that they are “not susceptible of having any intrinsic, determinable, and fixable value; that any value which might be fixed on them would only be speculative and conjectural.”

The best evidence as to the fair market value of the property was presented by Plaintiffs’ expert, Scott Adcock, a real estate appraiser. His appraisal reflects a fair market value of $166,400.00 for Plaintiffs’ undivided 35.764% interest in the land and timber sold to Defendants. This is less than the $175,000.00 Defendants paid for the property. Adcock’s appraisal does not include the speculative value of any mineral rights or interests. We accept this method of valuation as proper and his appraisal of the fair market value of the property as correct. Therefore, Plaintiffs failed to prove that the sale to Defendants is lesionary.

Accordingly, the trial court was manifestly erroneous in finding the value of the property to include the speculative value of unproduced mineral rights or interests.

Assignment of Error Number Two

In their second assignment of error, Defendants contend that the trial court committed legal error and manifest error in its fact finding: (a) by valuing the property as a mineral-producing property rather than a recreational property; (b) by failing to recognize the problems in the Coutret Report; and (c) by valuing the property in a state different than it was in at the time of the challenged transaction.

In its reasons for ruling, the trial court did not specifically find that the property should be valued as a mineral-producing property as opposed to an agricultural/timber/recreational property. As stated previously, although it is true |1sthat a landowner’s right to explore for minerals has a value, the record is devoid of evidence upon which this court can determine that value.

The trial court erred in considering the speculative value of unproduced minerals in determining the value of the property. Therefore, Plaintiffs failed to prove that their property should be valued as a mineral-producing property.

We note that the trial court was greatly influenced by the testimony of plaintiffs expert, Coutret. In its reasons for ruling, the trial court concluded that his qualifications “were without question.” The trial court stated that he had been a petroleum engineer for fifty-six years and had been a consultant for forty-three years. This court certainly takes no issue with Cou-tret’s education and experience; however, for the reasons previously discussed, we reject Coutret’s methodology in terms of his use of unsubstantiated assumptions and rank speculation to arrive at his valuation of the property at issue. Therefore, we find that the trial court erred in accepting Coutret’s value of the property wherein he valued the property as mineral-producing. At the time of the sale, the property was more properly valued based upon its use for agriculture, timber, and recreational purposes.

Assignment of Error Number Three

In their third assignment of error, Defendants assert that the trial court committed manifest error of law and fact by “mixing” the valuation reports of two experts who made different findings and applied different criteria. Defendants contend that the trial court erred in adding to the reports a purported mineral value.

The trial court accepted Adcock and James Young to provide expert testimony in the field of real estate appraisal. Ad-cock testified on behalf of Plaintiffs, and Young testified on behalf of Defendants. The trial court found both to be credible witnesses who testified concerning their methodology and approach. 114The trial court accepted Young’s value of the property alone, which was $607,500.00.

The trial court noted that after appraising the property alone, Young included the timber appraisal purportedly submitted by Richard Gates, Defendants’ forester. The trial court assumed that Young was “simply told to include the timber value given to him.” It rejected Gates’ timber appraisal and accepted the timber appraisal submitted by Ronald Prewitt, Plaintiffs’ expert forester, in the amount $269,453.00. The trial court combined Young’s property value with Prewitt’s timber value for a total of $876,953.00 ($607,500.00 + $269,453.00).

According to its reasons for ruling, the trial court noted that, because Plaintiffs owned a minority ownership interest, Young believed that the total value of the land and timber should be discounted by 50%, whereas Adcock suggested only a 40% discount. The trial court accepted Adcock’s suggestion which resulted in a $526,171.80 ($876,953.00 x 60%) valuation of the land and timber. It then noted that the Sisters’ ownership interest in the property was 35.764%. The trial court found that an undivided 35.764% interest in the property and timber was $188,180.08 ($526,171.80 x .35764). The trial court added the interest in the property and timber ($188,180.08) to the mineral interest ($673,881.00) for a total valuation of $862,061.08.

For all the reasons discussed above, the trial court was manifestly erroneous when it added the alleged value of the mineral rights ($673,881.00) to the value of the land and timber ($188,180.08), since there is no valid basis for the value of the mineral rights.

| Assignment of Error Number Four

Defendants contend that the trial court committed an error of law in denying and dismissing their demand that the Ca-son Deed be declared null and void and to reform the King Deed.

The trial court held the sale to be lesion-ary and, thereafter, denied and dismissed Defendants’ claim relative to both deeds. This court concludes that the sale was not lesionary, and, thus, the Cason deed is null and void. Further, the deed may be reformed where there is an error in the description. Willson v. Unopened Succession of Davis, 02-475 (La.App. 3 Cir. 10/30/02), 832 So.2d 360, writ denied, 03-108 (La.4/4/03), 840 So.2d 1214. Either party has a right to a correction of the legal descriptions in land conveyances. Succession of Jones v. Jones, 486 So.2d 1124 (La.App. 2 Cir.), writ denied, 489 So.2d 249 (La.1986). Accordingly, Defendants are granted the right to reform the King deed.

Assignment of Error Number Five

In their fifth assignment of error, Defendants contend that the trial court committed legal error and manifest error in its ruling on Plaintiffs’ fraud claims.

The trial court’s reasons for ruling on this issue provide:

[T]he Court has found as a matter of fact that Kyle King represented to the Sisters, through Tammy, that there was no timber of value on the Property, which as shown above, is not true. This misrepresentation induced the Sisters to sell the Property to him. The Court also found that Kyle was aware of the Haynesville Shale, and did not tell the Sisters about it.
However, since the Court has ruled that the subject sale should be rescinded on the basis of lesion, the plaintiffs’ claim for nullification of the contract on the basis of Kyle King’s fraud is moot.

Defendants’ argument indicates that the trial court found that they committed fraud. Although the trial court found that Kyle misrepresented to the |1fiSisters the value of the timber on the property, it did not grant Plaintiffs’ relief on the basis of fraud. Therefore, the trial court determined that the fraud claim was moot.

Defendants allege that the trial court erred in finding Plaintiffs’ fraud claim as moot insofar as the trial court determined the sale was lesionary. We have determined that the sale was not lesionary as Defendants paid to the Sisters a fair price for their undivided interest in the property at issue. Since we find a fair price was paid, there is no fraud. Thus, this assignment of error is moot.

Assignment of Error Number Six

Defendants contend that the trial court committed legal error in admitting and excluding certain evidence.

We find that this assignment of error is moot because the transaction is not lesion-ary.

DECREE

The judgment rendered by the trial court is reversed. Defendants are granted the right to reform the King deed. All costs of this appeal are assessed against Plaintiffs, Tammy Renea Martin Harruff, Amy Lynn Bilodeau, and Edgar Cason.

REVERSED.

      . Haynesville Shale is the name for a rock formation that underlies parts of east Texas, southwest Arkansas, and northwest Louisiana containing vast quantities of recoverable gas and is an area of extensive oil and gas exploration.

      . Richard King was one of the original defendants in this matter. However, he died in 2011, and his wife, Renee King, was substituted as administrator of his estate.

      . The Coutret report is an appraisal regarding the fair market value of the undivided, undeveloped mineral interest in the Sisters’ property provided by Plaintiffs’ expert witness, Henry Coutret.

      . According to the reasons for ruling, the trial court found that the value of the Sisters' 35.764% interest in land and timber, discounted by 40%, was $188,180.08. The trial court further found that the value of the Sisters’ 35.764% interest in the unsevered, undeveloped mineral interest was $673,881.00. The trial court added the two amounts together which equates to $862,061.08.


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Joshua D. BROOKS, Appellant.
    No. 49,024-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2014.

      Peggy J. Sullivan, Monroe, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, District Attorney, Dale Cox, Jr., Tommy J. Johnson, Sarah S. Midboe, Assistant District Attorneys, for Appellee.
    Before STEWART, PITMAN and GARRETT, JJ.
   GARRETT, J.

liThe defendant, Joshua D. Brooks, was convicted by a jury of second degree murder in the shooting death of a 15-year-old boy, a violation of La. R.S. 14:30.1. He was sentenced to serve 60 years at hard labor without benefit of parole. The defendant appeals his conviction, challenging the sufficiency of the evidence. We affirm the defendant’s conviction and sentence.

FACTS

On April 13, 2009, the 16-year-old defendant, his 17-year-old brother, Jeremy Brooks, and their 16-year-old friend, Paul Jones, were involved in a shooting incident at the Canaan Village Apartments in Shreveport, which caused the death of an innocent bystander, Terrell Savore.

Earlier in the day, a series of verbal confrontations occurred between two groups of youths in the Allendale neighborhood. At various points, physical altercations almost erupted between the defendant or his brother and members of the other group. During one of the earlier incidents, the defendant made a statement to the effect that if he fought and lost, he would shoot.

Later that day, the groups met up again at the apartment complex. A final verbal dispute ensued, with much profanity and more talk of fighting. The defendant stated that there was going to be “pistol play” and declared, “If we lose, someone going to die.” He then went into an apartment and retrieved an assault rifle or “chopper.” He returned to an outside area near a children’s jungle gym armed with this weapon. He and Jeremy, who also wanted the weapon, struggled over it. At some point, either when the defendant was loading it or during the struggle, the weapon discharged into |2the ground. Jeremy obtained the assault rifle despite resistance from the defendant and immediately began firing into the crowd on a hill in front of them. Paul, who was armed with a 9 mm handgun, also began shooting. There was testimony from several witnesses that someone on the hill returned fire with a .25 caliber weapon. After the gunfire ceased, the defendant, Jeremy, and Paul all fled the scene and offered no assistance to the innocent victim.

The victim, who had no involvement in any of the confrontations that day, was shot in the back and wrist and died as the result of massive blood loss. The bullets passed through his body and consequently were not recovered during the autopsy. The forensic pathologist who performed the autopsy opined that the victim’s injuries were caused by two bullets fired by a high-velocity rifle.

The police recovered 13 fired 7.62 x 39 mm cartridge cases; this type of ammunition is utilized with assault rifles. Firearm analysis determined all were fired from the same weapon. Also recovered were six fired .25 caliber cartridge cases; analysis indicated that all six were consistent with one weapon and that five of them were definitely fired from the same weapon. All 27 of the fired 9 mm cartridge cases recovered at the scene were fired from the same weapon. None of the weapons were recovered.

The defendant, Jeremy, and Paul were originally charged with first degree murder. The charges were later amended to second degree murder. Jeremy was tried first and convicted as charged. The defendant and Paul Rwere tried together in January 2013 and both were also convicted as charged. The defendant was subsequently sentenced to 60 years at hard labor without benefit of parole. His motion to reconsider sentence was denied.

On appeal, the defendant’s sole assignment of error is that the evidence adduced at trial was insufficient to show he had the specific intent to kill or inflict great bodily harm, that he actually fired any shots, that he aided and abetted Jeremy in the commission of any offense, or that he directly or indirectly counseled or procured anyone else to commit a crime.

LAW

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517.

|4The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529; State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Henry, 47,323 (La.App.2d Cir.7/25/12), 103 So.3d 424, writ denied, 2012-1917 (La.3/8/13), 109 So.3d 356.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Henry, supra. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if | ¿believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1. Specific intent is the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Davis, 40,382 (La.App.2d Cir.10/26/05), 914 So.2d 1129, writ denied, 2005-2419 (La.4/17/06), 926 So.2d 512. As a state of mind, specific intent need not be proved as a fact; it may be inferred from the circumstances and the actions of the defendant. State v. Kahey, 436 So.2d 475 (La.1983); State v. Davis, supra. The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Murray, supra; State v. Johnson, 27,522 (La.App.2d Cir.12/6/95), 665 So.2d 1237. The determination of whether the requisite intent is present is a question for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Davis, supra.

The parties to crimes are classified as: (1) principals, and (2) accessories after the fact. La. R.S. 14:23.

The law of principals, as set forth in La. R.S. 14:24, states that:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or |f,directly or indirectly counsel or procure another to commit the crime, are principals.

The defendant’s mere presence at the scene is not enough to “concern” an individual in the crime. State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999); State v. Schwander, 345 So.2d 1173 (La.1977). Nor can a jury’s inference that an accused aided and abetted in a crime be founded upon mere speculation based upon guilt by association. State v. Schwander, supra. Only those persons who knowingly participate in the planning or execution of the crime are principals. State v. Pierre, 631 So.2d 427 (La.1994). An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Lewis, 46,513 (La.App.2d Cir.9/28/11), 74 So.3d 254, writ denied, 2011-2317 (La.3/9/12), 84 So.3d 551. Acting in concert, each person becomes responsible not only for his own acts, but for the acts of the other. State v. Anderson, 97-1301 (La.2/6/98), 707 So.2d 1223. Under the law of principals, a person may be convicted of an offense even if he has not personally fired the fatal shot. State v. Hampton, supra; State v. Lewis, supra.

TRIAL TESTIMONY

A number of witnesses testified about the confrontations that day which led up to the shooting. The trial in this case was held almost four years after the incident occurred. Most of the witnesses were teenagers. While their testimony contained various discrepancies, they presented a clear narrative of the circumstances leading up to the tragic and senseless death of the victim, an uninvolved third party.

17Jamil Johnson, who was 12 years old at the time of the shooting, was a resident at the Canaan Village Apartments who happened to witness the shooting and the events immediately leading up to it. This disinterested witness observed young men arguing by the playground and heard the defendant say, “If we lose, someone going to die.” Jamil then saw the defendant obtain the assault rifle from an apartment, load it with a clip he pulled from his back pocket, and “flash” the weapon so everyone could see it. The defendant held it in both hands like he was going to shoot and aimed it at the other group of youths. At this point, Jeremy began to wrestle his brother for possession of the weapon, which fired once into the ground during the struggle. According to Jamil, the defendant resisted Jeremy’s effort to take the gun. Once Jeremy had the gun, he immediately started shooting up a hill toward a parking lot. Paul followed suit, firing his handgun in the same direction.

Precious Johnson, who was 15 years old at the time of the incident, is Jamil’s sister. She likewise witnessed the shooting and the events immediately preceding it. She testified that there was verbal arguing between the defendant and her cousin, La-darius Anderson, aka “Peanut.” She heard her cousin say he wasn’t going to fight the defendant if he was going to pull a gun. Although she did not see where the assault rifle came from, she observed the defendant holding it and shooting it at the ground. At that point, she saw Jeremy take the gun from the defendant and begin firing into the crowd.

IsSherrelle Savore, the victim’s twin sister, testified that she and her brother were among a group of young people who filled out summer job applications at a recreation center that morning. Her brother then left. After he departed, the defendant arrived and exchanged words with Ladarius, but there was no physical fight. Shortly thereafter, Sherrelle was present at a confrontation on Austin Street at which the defendant exchanged words with Terrance Holden, the boyfriend of her sister, Kim. Terrance wanted to fight and was ready to “take it to the field.” The defendant said, “I ain’t taking no losses, I’m shooting.” Sherrelle took this to mean that if the defendant lost the fight, he was going to shoot. Again there was no physical fight. When the defendant left, he said he was getting a gun.

Sherrelle testified that she went to the apartment complex with her friends and was sitting on the monkey bars in the playground when she witnessed a verbal fight. Both Terrance and the defendant were there. She then saw the defendant walk away and return with a “big gun.” She said that the gun was pointed at the ground and she did not see the defendant load or cock it. Sherrelle testified that the weapon appeared to be too big for the defendant, who stumbled and caused it to discharge into the ground. Jeremy then grabbed the gun from the defendant and began to fire at people on the hill in front of him.

Kim Savore, the older sister of the victim and Sherrelle, was also present at the apartment complex. She heard her boyfriend Terrance arguing with Jeremy. Then the defendant declared that there was going to be “pistol play.” The defendant left and returned with a chopper, which he held with both hands. She saw him cock and fire the weapon. Although the 19defendant did not seem to know how to use the chopper, Kim testified that he acted deliberately when he fired into the ground. Jeremy then wrestled the gun away from the defendant and began shooting. In addition to Kim and her companions, there were children playing in the area where he was firing.

Terrance Holden was 23 years old and serving a seven-year sentence for home invasion at the time of trial. He testified that he argued with Jeremy and wanted to fight him. While he saw Jeremy and Paul firing weapons, he denied seeing the defendant with any firearm.

Javarrea Cockerm, aka “Nook,” was a cousin of the victim; he was 20 years old at the time of trial. He testified that Terrance and Jeremy were about to fight at the apartment complex when the defendant ran inside and got the chopper. Ja-varrea stated that the defendant shot in the ground twice before Jeremy wrestled the weapon away from him and opened fire on the crowd.

Ladarius Anderson was 18 years old at the time of the incident. He described the events leading up to the shooting. He and the defendant exchanged words outside the recreation center; the defendant accused him of “muggin” or looking at him with attitude. No fight erupted and their respective groups separated. Later the groups met up again on Austin Street. This time Ladarius had words with Jeremy; Ladarius asked him if he wanted to go behind the school and fight. Jeremy did not. The defendant was also present, and a girl suggested that Ladarius and the defendant should fight and get it over with. The defendant said if he fought and lost, he was still going to shoot. The two groups met up a third time at the apartments. | inLadarius was standing behind Terrance when Terrance confronted Jeremy about “muggin” him. The defendant came through a breezeway with the gun, which he appeared to be racking in preparation to fire it. Then the defendant and Jeremy began tussling over the gun, which discharged during the struggle. According to Ladarius, the defendant and Jeremy each seemed to want the weapon for himself.

Sedricka Ragster testified that she was a cousin of the victim and the sister of Javarrea. She was 16 years old at the time of the shooting and was present at the series of confrontations that day. At the recreation center, she saw a fight almost erupt between the defendant and La-darius. During the incident on Austin Street, she saw the defendant and Paul pass a handgun. At the apartments, she heard Ladarius and the defendant exchange words. The defendant said, “I ain’t taking no loss.” According to Sedric-ka’s testimony, this expression is slang and indicates that “you ain’t fixing to get beat up, you ain’t fixing to fight, so they rather play pistol play.” The defendant got a chopper, which was so big he couldn’t handle it. After he fired it into the ground twice, Jeremy took it away from him. Sedricka testified that the defendant was not trying to stop a fight, but attempting to instigate one.

DISCUSSION

After viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty as a principal to the offense of second degree murder. A thorough review of the testimony does not support the defendant’s position and provides more than a rational basis for the jury’s verdict. Although there are some | ndifferences in the witnesses’ recollections, there are significant consistencies that overwhelmingly support the jury’s finding that the defendant had the specific intent to kill or inflict great bodily injury. The majority of the witnesses to the confrontations preceding the shooting heard the defendant express his intention to shoot. Almost every witness personally observed the defendant introduce the assault rifle into a situation which was essentially a verbal dispute or, at worst, the preamble to a fistflght. Jamil testified that the defendant flashed the weapon to everyone while Ladarius stated that he carried it as if he were ready to fire. The witnesses agreed that the defendant did not want to relinquish possession and control of the gun to his brother. Sedricka emphatically testified that the defendant was instigating the altercation, not trying to stop it.

The jury was well within its discretion in dismissing any minor inconsistencies in the testimony and in accepting and crediting the testimony that showed that the defendant escalated a verbal altercation into a deadly confrontation by arming himself with an assault rifle, loading it, and then fighting to keep the weapon when his brother attempted to take it. The defendant had indicated repeatedly that he was going to resort to “pistol play” rather than suffer a loss in fighting. Thus, his actions went well beyond merely being present at the scene of the shooting. This record contains more than sufficient evidence on which a reasonable fact finder could conclude that the defendant had the requisite intent to support a conviction for second degree murder of the victim. In addition, the defendant’s argument that the evidence is lacking that he was a principal to the crime is also without merit. The testimony clearly shows that the |12defendant acted in concert with the two other participants to bring about the resultant shooting and death of the victim.

ERRORS PATENT

Our error patent review reveals that the trial court did not properly advise the defendant of the prescriptive period for seeking post-conviction relief as required by La. C. Cr. P. art. 930.8(C). Therefore, we advise the defendant, by way of this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . This court affirmed Jeremy's conviction in State v. Brooks, 47,394 (La.App.2d Cir. 12/12/12), 108 So.3d 161, writ denied, 2013-0080 (La.5/31/13), 118 So.3d 393. However, in light of recent jurisprudence forbidding mandatory life sentences with no possibility of parole for offenders under the age of 18 at the time of the crime, we vacated his life sentence without benefits and remanded for resentencing.

      . The appellate record contains different spellings of the names of several witnesses. We utilize the spellings used in the police documents contained in the record.