author: PAUL A. BONIN, Judge.

text:
    Jessica BRIGGS, v. 2901 I-10, L.L.C.
    No. 2014-CA-0386.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 25, 2014.
    Dominick M. Bianca, Baton Rouge, LA, for Plaintiff/Appellant.
    Frank R. Whiteley, III, Whiteley and May, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

11 Jessica Briggs, an employee at The Crazy Horse Cabaret in Port Allen, Louisiana, was injured when a row of lockers detached from a wall and fell on her while she was at work. Ms. Briggs executed a receipt and release in favor of The Crazy Horse Cabaret, the lessee, but subsequently sued 2901 I — 10 LLC, the owner of the property and building occupied by. The Crazy Horse Cabaret. It is undisputed that under the lease between the owner and Crazy Horse Cabaret, the lessee contractually assumed liability for Ms. Briggs’s injury in accordance with La. R.S. 9:3221, which relieves an owner/lessor of strict liability under La. Civil Code arts. 2317, 2322 and 2695 so that the owner/lessor is liable only for negligence. See Chau v. Takee Outee of Bourbon, Inc., 97-1166, p. 5 (La.App. 4 Cir. 2/11/98); 707 So.2d 495, 498. It is also undisputed that the owner in this case did not know of any defect in its property, had not received notice of the defect, and failed to remedy the defect within a reasonable time. Thus, the provisions of La. R.S. 9:3221 compel Ms. Briggs to prove that the owner “should have known of the defect” in order to impose liability upon the owner under these circumstances.

|2The property owner filed a motion for summary judgment pursuant to La. C.C.P. art. 966 C(2), pointing out that there is an absence of factual support for Ms. Briggs’s claim that the owner should have known of the defect. The trial court granted the owner’s motion for summary judgment and dismissed Ms. Briggs’s suit with prejudice. On our de novo review, we conclude that Ms. Briggs failed to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial, and thus there is no genuine issue of material fact. Accordingly, summary judgment is appropriate, and we affirm.

We explain our decision in more detail below.

I

In this Part we describe the facts as we understand them from the evidence introduced in connection with the motion for summary judgment.

Sometime after the lease between the owner and Crazy Horse Cabaret was executed in 2005, the lessee’s regional manager purchased lockers for the use of its employees. One of the lessee’s maintenance employees installed the women’s dressing room lockers in early 2006.

On December 12, 2007, Ms. Briggs, like the other employees who were getting off from work, was gathering her personal belongings out of her locker and saw the lockers, as she described it, “kind of wobble.” As she turned away, the row of steel pre-assembled lockers fell, hitting her in the neck and back, and throwing her across the room. This was the first time, according to the affidavits Ron file in support of the motion for summary judgment, that there was any problem with the lockers.

According to the affidavit of Ms. Briggs’s professional engineer, it was his opinion that the lockers may have toppled over due to someone pulling on the them and that insufficient anchoring allowed the lockers to tip forward. It was also his opinion that the lockers were not installed according to the manufacturer’s installation specifications. There is also deposition testimony that one of Ms. Briggs’s fellow employees caused the lockers to become dislodged by her actions.

II

The dispute presently before us centers on whether Ms. Briggs established a genuine issue of material fact as to whether the owner should have known of the lockers’ condition. A lessee can assume the owner’s responsibility or liability under a lease for injury to himself “or anyone on the premises who derives his right to be thereon from the lessee.” La. R.S. 9:3221. If there is such an assumption of responsibility, ordinarily the owner “is not liable for the injury caused by the defect.” Id. The owner, however, does not escape liability if he “knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.” Id. (emphasis added).

RHere, there is no dispute that the lease provides that “Lessee hereby assumes responsibility for the condition of the Leased premises and Lessor shall not be liable to Lessee or anyone who derives his right to be thereon from the Lessee, for any injury, death or damages caused by any defect in the Leased Premises.” (Emphasis added.) Moreover, there is no - dispute that Ms. Briggs, the injured party, derived her right to be on the premises from the lessee. And finally it is conceded by Ms. Briggs that the affidavits filed by the owner, and not contradicted by opposing affidavits or depositions, establish that the owner did not have actual knowledge of any defect and that it had not received notice of the defect before Ms. Briggs’s injury.

Thus, the only factor remaining under 3221 is whether the owner “should have known of the defect.” At trial the burden of proving that the owner should have known of the defect is upon Ms. Briggs, the injured party. See Hampton v. Succession of Matter, 01-1149, p. 4 (La.App. 4 Cir. 1/9/02); 806 So.2d 900, 903; Robinson v. Archdiocese of New Orleans, 98-1238, p. 4 (La.App. 4 Cir. 3/3/1999); 731 So.2d 979, 981.

Ms. Briggs, however, relies on several intermediate appellate court decisions, including some from our circuit, which held that the owner’s affidavit must negate the “should have known” requirements of the statute. Ms. Briggs complains that there are three members of the limited liability company which owns the premises and that only one of the members filed an affidavit in which he | ^denies actual knowledge, but is silent as to whether he “should have known.” She also argues, it seems, that some adverse inference should be drawn against the owner because of the failure of the other two members to negate the “should have known” requirement by filing additional affidavits. But her reliance on this line of cases is misplaced because, as we discuss in Part III, post, all of her cases were decided before the 1997 amendment to La. C.C.P. art. 966 C(2), which controls the manner in which both we, and the trial court, address the type of motion for summary judgment filed by the owner in this case.

Ill

Basically, the mover in a motion for summary judgment is entitled to judgment if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966 B(2). Generally, we, like the trial court, make the determination that there is no genuine issue of material fact by examining the pleadings and, when filed, the accompanying evidentiary documents (e.g., depositions, affidavits, answers to interrogatories). See id.

But, when the mover in the motion for summary judgment will not bear the burden of proof at trial on the matter that is before the court on the motion, there is an alternative means of determining that there is no genuine issue of material fact. See La. C.C.P. art. 966 C(2). In such circumstances, which were put into place by a 1997 amendment to La. C.C.P. art. 966, the mover first “point[s] 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.” Id. “Thereafter, if the adverse party | fifails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact.” Id.

Here, the building owner has pointed out that there is an absence of factual support for Ms. Briggs’s burden of establishing that it “should have known” about the alleged defect in the installation of the lockers. We have previously noted that the legislative purpose behind the adoption of § 3221 was “to relieve the owner of some of the burdens imposed upon him by law in cases where he had given dominion or control of his premises to a tenant under a lease.” Chau, 97-1166, p. 6, 707 So.2d at 498. In Chau we observed that in “view of the statute’s purpose of relieving owner lessors of some liability when the lease shifts responsibility for the premises to the lessee, the phrase ‘should have known’ in the statute should not be construed to impose expansive burdens upon the owner lessor.” Id. We further noted that were we to impose upon an owner a duty to inspect the premises so as to actively determine whether there were defects, the burden upon the owner would scarcely be less than that imposed by strict liability. Id. Thus, imposing such a duty to inspect upon an owner would all but completely deny him the relief granted to him by La. R.S. 9:3221. Resolving that we should not frustrate the legislative purpose underlying the article, we concluded that an owner, under these circumstances, has no duty to inspect. Id. See also Jamison v. D’Amico, 06-0842, p. 5 (La.App. 4 Cir. 3/14/07); 955 So.2d 161,165.

The usual burden imposed upon an owner is that he is liable for damages upon a showing that “in the exercise of reasonable care, [he] should have known of |7the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.” Cf. La. Civil Code art. 2322. There is nothing to suggest in the evidentiary materials that any deficiency in the locker installation could have been discovered by any means other than by an inspection. In this respect, Ms. Briggs has not produced any factual support to show what the owner should have known in the exercise of reasonable care absent the imposition of a duty — which the Legislature has not sought to impose — to inspect the lockers.

We conclude that the trial judge correctly granted summary judgment in favor of the owner and against Ms. Briggs. She has offered no factual support for her contention that the property owner should have known of the installation defect in the lockers, which is essential to her claim for damages. Thus, there is no genuine issue of material fact and the property owner is entitled to judgment in its favor as a matter of law. See Smith v. French Mkt. Corp., 03-1412, p. 7 (La.App. 4 Cir. 10/6/04); 886 So.2d 527, 531.

IV

We turn now to briefly address Ms. Briggs’s arguments and assignments of error pertaining to American Restaurant, Inc., whom she contends exercises operational control of the building which houses the Crazy Horse Cabaret. It appears that on the same date that Ms. Briggs filed her opposition to the owner’s motion for . summary judgment, she filed also a motion for leave to file' a first supplemental and amending petition in order to name American Restaurant as an |8additionaI party defendant. The trial court permitted the filing. See La. C.C.P. art. 1151.

Ms. Briggs appeals the alleged dismissal of her claim against American Restaurant. But from our review of the judgment rendered by the trial court, the judgment only identifies and pertains to 2901 1-10, LLC, the owner. There is no decretal language whatsoever dismissing the claim against American Restaurant. There is no merit to this assignment.

DECREE

The judgment granting summary judgment' in favor of 2901 I — 10, LLC and dismissing with prejudice the lawsuit of Jessica Briggs against 2901 1-10, LLC, is affirmed. All costs of the appeal are taxed to Ms. Briggs. See La. C.C.P. art. 2164.

AFFIRMED.

      . La. R.S. 9:3221 provides:
      Notwithstanding the provisions of Louisiana Civil Code Article 2699, the owner of premises leased under a contract whereby tire lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

      . See, for example, Muse v. Katz, 632 So.2d 846 (La.App. 4th Cir. 1994); Roberts v. Orpheum Corporation, 630 So.2d 914 (La.App. 4th Cir. 1993).


source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge.

license: Public Domain

text:
    David Edwin DEW, Jr. v. Deidre M. BLANKENSHIP.
    No. 14-CA-649.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2014.
    Camille E. Saltz, Attorney at Law, Hou-ma, LA, for the Plaintiff/Appellee.
    Deidre M. Blankenship, Stafford, TX, in proper person.

      Panel composed of Judges JUDE G. GRAVOIS, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

12Pefendant, Deidre Blankenship, appeals the trial court’s considered decree of custody. For the following reasons, we dismiss the appeal.

Procedural History

On December 13, 2013, the trial court rendered a considered decree of custody. Notice of the judgment was mailed on December 18, 2013. On February 6, 2014, defendant filed a pro se motion for devolu-tive appeal, which the trial court denied on February 12, 2014, without reasons. Thereafter, on March 12, 2014, defendant re-urged a second motion for devolutive appeal and a motion for extension of time to file a writ application to seek review of the trial court’s denial of her first motion for appeal. On March 21, 2014, the trial court granted defendant’s second motion for appeal.

Discussion

La. C.C.P. art. 3943 provides that “an appeal from a judgment awarding custody, visitation, or support of a person can be taken only within the delay [.¡provided in Article 3942.” La. C.C. P. art. 3942(A) provides that an appeal “can be taken only within thirty days from the applicable date provided in Article 2087(A).” Therefore, a motion for appeal from a judgment of custody must be taken within 30 days of either: 1) the expiration of the delay for applying for a new trial, if no application has been timely filed; or 2) the date of the mailing of the notice of the court’s refusal to grant a timely filed application for a new trial. See La. C.C.P. art.2087. Accordingly, defendant’s motion for appeal had to be filed within 30 days of the expiration of the time for filing a motion for new trial. See La. C.C.P. arts.1974 and 2087.

As noted above, notice of the signing of the appealed judgment was sent by the clerk of court on December 18, 2013. Therefore, the delay for filing a motion for new trial expired on January 2, 2014. The 30-day time period for filing a motion for appeal, then, expired on February 3, 2014. Thus, defendant’s motion for appeal filed February 6, 2014, was untimely and properly denied by the trial court. Likewise, defendant’s second motion for appeal filed March 12, 2014, was untimely. As such, the trial court erred in granting defendant’s second motion for appeal. Louisiana jurisprudence is clear that timeliness of an appeal is jurisdictional, and neither the trial court nor the appellate court has the authority to extend this delay. Seaman v. Seaman, 10-1295 (La.App. 3 12/15/10), 54 So.3d 756, 760; State ex rel. E.A., 02-996 (La.App. 3 Cir. 10/2/02), 827 So.2d 594, 596.

Absent a timely motion for appeal, the appellate court lacks jurisdiction over the appeal. Davis v. Caraway, 13-619 (La.App. 5 Cir. 2/12/14), 136 So.3d 81, 82, citing Falkins v. Jefferson Parish School Board, 97-26 (La.App. 5 Cir. 5/9/97), 69.5JjSo.2d 1005, 1006. An appellate court may, on its own motion, recog7 nize its lack of authority to consider an untimely appeal and dismiss it. Id.

Accordingly, because defendant’s motion for appeal, filed on February 6, 2014, is untimely, we do not have jurisdiction to consider this appeal, and the appeal must be dismissed.

Decree

For the foregoing reasons, we dismiss the appeal.

APPEAL DISMISSED

      . The record reflects that the trial court did not rule on defendant’s motion for extension of time to file a writ application.

      . La. C.C.P. art. 1974 provides that "the delay for applying for a new trial shall be seven days, exclusive of legal holidays.” See also La. C.C. art. 5059 and La. R.S. 1:55.

      .February 1, 2014, was a Saturday.


author: WILLIAMS, J.

text:
    H.D. GRAPHICS, L.L.C., Plaintiff-Appellant v. IT’S PERMANENT, L.L.C., Defendant-Appellee.
    No. 49,405-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Ali Moghimi, In Proper Person, Appellant.
    Terri Grayson, Le, In Proper Person, Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.

      . The original work was not designed and installed by Ali and Ellie Moghimi; it was completed by the previous owners of H.D. Graphics.

   WILLIAMS, J.

| plaintiff, H.D. Graphics, L.L.C., appeals a trial court judgment dismissing its claims against defendant, It’s Permanent, L.L.C. For the following reasons, we affirm.

FACTS

In December 2012, Terri Grayson, the owner of It’s Permanent, L.L.C. (“It’s Permanent”), entered into an agreement with Ali and/or Ellie Moghimi, the owners of H.D. Graphics, L.L.C. (“H.D. Graphics”). Pursuant to the agreement, .H.D. Graphics was to design and install a graphic design on the windows and door at It’s Permanent. According to the testimony at trial, Ellie Moghimi designed the graphic and “Roger,” an H.D. Graphics employee, began the installation on December 18, 2012. Ms. Grayson testified that when Roger arrived at the location, he informed her that she was required to pay for the services before he began the installation. Ms. Grayson submitted to Roger a check in the amount of $1,300, as payment for services rendered. After Ms. Grayson reviewed the invoice, she noticed a discrepancy and questioned a charge for one of the items listed. Roger consulted with Ms. Moghi-mi, who agreed to reduce the price of the services. Thereafter, H.D. Graphics issued a refund check in the amount of $100, made payable to It’s Permanent; Ms. Grayson accepted the check and cashed it.

A dispute arose between Ms. Grayson and Ms. Moghimi when Ms. Grayson expressed her dissatisfaction with the quality of the final work performed. Following a verbal confrontation, Ms. Grayson stopped payment on the $1,300 check she had submitted. Thereafter, Ms. Grayson |2wrote to H.D. Graphics and enclosed a check in the amount of $100 to reimburse the company for the refund it had offered “due to the overcharge!.]”

On February 28, 2018, Ali' Moghimi filed a petition for damages, alleging that H.D. Graphics had rendered goods and services to It’s Permanent, and Ms. Gray-son stopped payment on the check and failed to pay the balance owed. Mr. Moghimi further alleged that his company was entitled to a judgment in the amount of $2,665, in accordance with LSA-R.S. 9:2782.2. Attached to the petition were numerous requests for admissions of fact.

Subsequently, Ms. Grayson, on behalf of It’s Permanent, filed an answer, disputing the allegations set forth in the petition. Ms. Grayson described the work performed by H.D. Graphics as “unsightly,” and “an eye sore.” She also stated that the graphic thát had been installed contained several misspelled words which were “embarrassing” to her and her business.

On March 20, 2013, Mr. Moghimi filed a motion to compel answers to discovery, ie., the requests for admissions of fact. A hearing was held on April 11, 2018, during which the trial court noted that Ms. Gray-son had responded to the requests for admissions of fact in her detailed answer to the petition. Consequently, the court denied the motion to compel and assessed all costs to plaintiff.

|3The trial on the merits was held on August 7, 2013, during which several witnesses testified. The testimony from various witnesses indicated that the windows were installed by an H.D. Graphics employee named “Roger,” who did not testify at trial. Ms. Moghimi testified that Roger was no longer employed by her company and she did not know his whereabouts.

Ellie Moghimi testified as follows: Ms. Grayson contracted with her to replace the window films on a newly repaired window at It’s Permanent; she did not ask Ms. Grayson to pay for the work in advance; it was not her business practice to require customers to pay for a job before it was completed; she personally completed the redesign work for Ms. Grayson’s business; one of her employees met with Ms. Gray-son to finalize the design and graphics; she sent Roger to complete the installation of the design; Ms. Grayson called her while the graphics were being installed and told her that the windows did “not look right”; she went to the site; the work being installed looked “normal” to her; the only thing she saw wrong was that the window had excess ink, which was a normal occurrence; once the installation was completed, the window needed to be washed to remove the excess ink; the Aquis ink used for the job at It’s Permanent required at least 72 hours to dry; the spots visible in Ms. Grayson’s photographs were only excess ink that needed to be washed from the window; Ms. Grayson informed her that she was unhappy with the work; she explained to Ms. |4Grayson that she would send someone to wash the window “in a few days”; Ms. Grayson expressed her belief that the graphic film used in the new installation was not the same as the older films used on the other windows; Ms. Grayson threatened to stop payment on the check; Ms. Grayson stopped payment on the check; Ms. Gray-son did not allow her to send her employees to remove the spots from the windows; during the installation, Ms. Grayson noticed that one of the graphic designs she had requested was not being installed; she told Ms. Grayson that she would reimburse her $100 “to make [her] happy”; when she gave Ms. Grayson the $100 check, she did not believe she (Ms. Gray-son) would stop payment on her check; Ms. Grayson did not give the check to Roger until after the work was completed; Roger delivered the check to her.

At some point during her testimony, Ms. Moghimi contradicted her previous testimony that Ms. Grayson had called her to complain about the installation of the graphic film, testifying as follows: she called Ms. Grayson to thank her for the check; during that call, Ms. Grayson expressed concerns about the work; she volunteered to go to It’s Permanent to look at the work; she did not see anything wrong with the work; she told Ms. Grayson the work “look[ed] beautiful; Ms. Grayson threatened to stop payment on the check”; Ms. Grayson approved the design, including the spelling of words and names, before the design was printed; when she went to the business to view the work, she pointed out the misspelled words to Ms. Grayson, who responded, “Ellie, I don’t care about that”; Ms. Grayson told her on several occasions that she was not concerned about the | ^misspelled words in the designs; Ms. Grayson was only concerned about the windows because her employees and clients could not see outside; she did not see anything wrong with the work; it looked “perfect” from the outside; the “dots” were only visible from the inside; the windows needed to be cleaned after they completely dried; she offered to repair the work on the windows; Ms. Gray-son refused because “she did not want me touching her windows”; she offered to lower the price to correct the work; Ms. Grayson accepted, then changed her mind; the windows have not been repaired.

William Langley testified as follows: he works as a subcontractor for various sign companies; the graphic films installed at It’s Permanent are “Aqua” films; he did not see anything wrong with the graphic design/installation; the design “just looked like it wasn’t cleaned” within three to five days after it was installed; he could not tell whether the film on the other windows was Aqua.

Chris Harris testified that he had been in the business of installing vehicle graphics, decals and signs for approximately 15 years. Mr. Harris testified that he had heard of aqua-based ink, but in his business, he installed solvent-based ink. According to Mr. Harris, he had viewed the work H.D. Graphics installed at It’s Permanent and “everything looked fine to [him].” On cross-examination, he admitted that the window did not look “fine” from the “inside looking out.” When viewing the photographs, Mr. Harris admitted that he could only “partially” see out of the window.

Phillip Jarratt, an employee of Premier Cars and Trucks, testified that he had often engaged H.D. Graphics to design and install window graphics |fifor his business. He also stated that H.D. Graphics had never required him to pay for the work until after the work was completed and he had inspected it.

Jacob Duvall testified that he had contracted with H.D. Graphics to complete signs and other design work. He also stated that he had never paid for work prior to completion.

Terri Grayson testified on behalf of her company as follows: H.D. Graphics performed the original graphic design work on the windows of her business; one of the windows was broken in 2012, requiring her to replace the window and the graphic/film on that window; she wanted a name changed on the design and the logos removed from two of the windows; additionally, she wanted a new slogan placed on the windows; she contracted with H.D. Graphics to have the work completed; she questioned the price on the invoice before Roger began the installation; Roger agreed to issue a refund in the amount of $100; she deposited the $100 refund check and later issued to H.D. Graphics a check in the amount of $100 to reimburse it for the refund; while the work was being completed, she voiced her concern about the quality of the work; she asked Roger to stop the work; he refused to do so; she called Ellie Moghimi and asked her to come to the location to see the work; she had already submitted a check to Roger to pay for the work; she stopped payment on the check; she received a certified letter from H.D. Graphics requesting payment in the amount of the check, plus 5%, within 30 days; she did not pay the amount requested.

|7In explaining her displeasure with the work performed by H.D. Graphics, Ms. Grayson testified that it was “just bad work[;] [i]t did not look like the work that had been done to my windows in the past.” She stated that she was unable to see through the window; when she complained to Roger, he ignored her and continued working. She also testified that the design contained several misspelled words.

Henry Michael Tyson testified that he is in the business of installing window graphics similar to the one in dispute. He also testified that Ms. Grayson contacted him in January 2013, to obtain a quote to repair the work performed by H.D. Graphics. Mr. Tyson testified that the materials used by H.D. Graphics were “the standard ones that are used.” However, he testified as follows:

You should be able to see out of the window clearly through and with this job you couldn’t. It looked like when the ink printed, too much ink was sprayed out and it stuck in the perforations. And when they peeled the back off, the dried ink stayed in the holes.

Corrie Freeland, an It’s Permanent employee, testified as follows: Roger came to It’s Permanent on December 18, 2012 and told her that he was there to “start the work”; Roger stated he needed the full payment before beginning the installation; Roger showed Ms. Grayson something on a laptop computer, and then told her that he would return later to complete the job; Roger accepted the check from Ms. Gray-son; he left and returned later to begin the installation; he completed the installation the following day; Roger became angry when she and other employees told him they were unable to see out of the windows; Roger called Ms. Moghimi and left; he |sdid not mention anything about cleaning the windows; Ms. Grayson also called Ms. Moghimi; after Roger left, Ms. Moghimi came to the business accompanied by another woman; Ms. Moghimi “blew up” and began “yelling and screaming” at Ms. Grayson; Ms. Moghimi stated that she did not see anything wrong with the windows; Ms. Moghimi did not offer to repair the work; Ms. Moghimi did not say anything about washing the windows.

Tabitha Faircloth, an employee of It’s Permanent, testified as follows: she “immediately” noticed a difference in the film being used; she asked Roger whether he was using a different type of film or ink because “it looked very different”; Roger told her that he would talk to her later because “he was busy”; Ms. Grayson asked Roger to stop working because she could see an obvious difference in the film being used; Roger “would not stop”; Ms. Grayson called Ms. Moghimi; after being called by Ms. Grayson, Ms. Moghimi arrived at the site and “was mad and very upset”; Ms. Moghimi “was yelling and screaming and cursing and throwing a fit”; in January 2012, she and Ms. Grayson went to see Ms. Moghimi to attempt to resolve the issue; Ms. Moghimi informed them that the window film that had been installed was water based, rather than solvent based; Ms. Moghimi told them that she would “fix the windows” by using a more expensive film.

Ms. Faircloth also testified that she was employed at It’s Permanent when the original graphics/films were installed in the other windows. According to Ms. Fair-cloth, they had never experienced a problem with the film; they had never had to have the windows washed after previous | installations; she does not remember previously seeing holes filled with ink after installations.

After hearing the testimony and reviewing the. evidence, the trial court took the matter under advisement. Subsequently, the court rendered a judgment dismissing plaintiffs claims.

Plaintiff appeals.

DISCUSSION

Plaintiff contends the trial court erred in denying the motion to compel responses to discovery. Plaintiff argues that a party is entitled to obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.

The trial court has broad discretion in regulating pretrial discovery, and its decision will not be disturbed on appeal absent a clear abuse of that discretion. Bell v. Treasure Chest Casino, L.L.C., 2006-1538 (La.2/22/07), 950 So.2d 654; Bishop v. Shaw, 43,137 (La.App.2d Cir.3/12/08), 978 So.2d 568. That discretion may be abused when the trial court denies a motion to compel which seeks information that is properly discoverable, especially where the examination of the requested information may be the only means by which a party can defend the claims against it. Bishop, supra.

In the instant case, at the hearing on the motion to compel, the trial court pointed out that Ms. Grayson, on behalf of It’s Permanent, had | inanswered plaintiffs discovery requests with her answer to the petition. The court stated, “You may not like the answer[,] but the answer is in the record.” Thereafter, plaintiff argued that Ms. Grayson had not answered the Request for Admission No. 12. The colloquy was as follows:

BY COURT: You are stating that No. 12 has not been answered?
BY MOGHIMI: That is correct sir.
BY COURT: And No. 12 states that defendant neither returned the $100.00 credit nor made a payment of $100.00 to Plaintiff.
BY MOGHIMI: That is correct.
BY COURT: Where in here did she not answer that? Because her answer is in No. 2.
BY MOGHIMI: She did not put it in No. 2.
BY COURT: But her answer is in the pleadings. Her response is in there. BY MOGHIMI: That is not the issue.
BY COURT: The issue is that you state that she did not answer.
BY MOGHIMI: Yes.
BY COURT: But she has answered.

Our review of the record reveals that Ms. Grayson responded to each of plaintiffs requests for admissions of fact in her answer to the petition. Specifically, she clearly responded to Request for Admission No. 12 as follows:

2. The invoice reflected a $300 charge for design work; there was no design work. When I questioned thej_ycharge, they gave me a $100 refund. I’ve never received a corrected] invoice.
8. In response to # 12 of the Requests for Admission[s], I mailed a $100 check to HD Graphics along with the enclosed letter. The check has been cashed and I will provide a copy.

As stated above, the record supports the trial court’s conclusion that Ms. Grayson did, in fact, respond to plaintiffs requests for discovery. Therefore, we find that the trial court did not abuse its discretion in denying plaintiffs motion to compel. This assignment lacks merit.

also contends the trial court erred in failing to render a judgment in the amount of twice the value of the dishonored check, plus 5% of the value on the face of the check.

LSA-R.S. 9:2782.2 provides, in pertinent part:

A. Whenever any drawer of a check stops payment on the check with the intent to defraud or when there is no justifiable dispute as to the amount owed or the existence of the obligation, the drawer shall be liable to a holder in due course as defined in R.S. 10:3-302, or a person subrogated to the rights of such holder, for damages of twice the amount so owing, but in no case less than one hundred dollars, plus attorney fees and court costs, if the drawer fails to pay the obligation created by the check within thirty days after receipt of written demand for payment thereof substantially in the form provided for in Subsection C which notice is delivered by certified or registered mail.
B. The holder in due course may charge the drawer of the check a service charge not to exceed fifteen dollars or five percent of the face amount of the check, whichever is greater, when making written demand for payment.
* ⅜: *

(Emphasis added).

Thus, pursuant to the statute, a holder in due course of a check that is 112the subject of a stop payment order may be entitled to a penalty of “twice the amount so owing,” plus attorney fees and court costs. However, the penalty provision applies only when the stop payment is issued “with the intent to defraud” or “when there is no justifiable dispute.” LSA-R.S. 9:2782.2(A); Royal Air, Inc. v. Pronto Delivery Service, Inc., 38,939 (La. App.2d Cir.12/14/05), 917 So.2d 1197; An-cona’s Stop and Save, Inc. v. Cleo Fields & Associates, L.L.C., 2000-0760 (La.App. 1st Cir.6/22/01), 809 So.2d 170.

LSA-R.S. 9:2782.2 provides for penalties and attorney fees; it is penal in nature and must be strictly construed. Lorick v. Direct General Ins. Co. of Louisiana, 43,716 (La.App.2d Cir.1/21/09), 2 So.3d 1209; Royal Air, Inc., supra

In the instant case, we find that a justifiable dispute existed with regard to the services provided and the payment therefor; therefore, the trial court did not err in failing to apply LSA-R.S. 9:2782.2. Ms. Grayson testified with regard to her dissatisfaction with the quality of the work performed by H.D. Graphics. Ms. Gray-son and her staff also testified that Ms. Grayson attempted to stop H.D. Graphics’ employee from completing the installation. However, the employee refused to stop. The testimony from the witnesses, as well as the photographs introduced into evidence, proves the opaque nature of the film placed on the windows, rendering it impossible to see out of the window from the inside. Moreover, Ms. Moghimi admitted that the excess ink made it difficult to see through the window. Additionally, Ms. Grayson testified that if the employee had not j ^required her to pay for the design and installation before the work was performed, there would have not been a dispute with regard to the stop-payment order. According to her, she simply would not have paid for it. For these reasons, we find that the trial court did not err in denying plaintiffs request for twice the value of the dishonored check, plus 5% the value on the face of the check. This assignment lacks merit.

Finally, plaintiff contends the trial court erred in dismissing its claims against defendant. Plaintiff argues that the court should have awarded “some amount” for the services rendered to defendant and court costs. Plaintiff also argues that he issued to defendant a check in the amount of $100, as a reduction in price and has been “left in the hole” for $100.

An appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. State, Dept, of Public Safety and Corrections, 2001-2128 (La.9/4/02), 825 So.2d 1134; Stobart v. State, Dept, of Transp. and Dev., 617 So.2d 880 (La.1993); State Farm Mut. Auto. Ins. Co. v. Carter, 46,608 (La.App.2d Cir.11/2/11), 77 So.3d 1036. To reverse a factfinder’s, determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact h4should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989).

As stated above, despite the various testimony regarding the quality of the work performed, all of the witnesses agreed that the excess ink of the newly installed graphics made it impossible to see out of the window. Additionally, the photographs admitted into evidence depicted the excess ink that was imbedded in the perforations, as well as several misspelled words on the graphics. For these reasons, we find that the record supports the trial court’s findings of fact in this case. Thus, the trial court was not clearly wrong in ruling in favor of defendant and dismissing the case. This assignment lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment dismissing the plaintiffs claim is hereby affirmed. Costs of this appeal are assessed to plaintiff, H.D. Graphics, L.L.C.

AFFIRMED.

      . In the petition, Mr. Moghimi's name is spelled “Moghiimi.” However, in other portions of the record, his name is spelled "Moghimi.” Throughout this opinion, we will refer to him as “Mr. Moghimi.”

      . Despite Ms. Moghimi’s assertions regarding Roger's unknown whereabouts, the trial judge noted that Roger and Mr, and Mrs. Moghimi were also embroiled in some type of litigation.

      . In the lower court, plaintiff, H.D. Graphics, L.L.C., was represented by counsel. However, counsel withdrew after the judgment was signed. In this appeal, plaintiff appears in proper person; the appellate brief was signed by "Ali Moghimi,” presumably, a member of the L.L.C.


author: LOLLEY, J.

text:
    TOWN OF STERLINGTON, Plaintiff-Appellant v. OUACHITA PARISH POLICE JURY, Defendant-Appellee.
    No. 49,406-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.
    C. Bryan Racer, for Appellant.
    Jay B. Mitchell, for Appellee.
    Before LOLLEY, PITMAN and GARRETT, JJ.
   LOLLEY, J.

| plaintiff, the Town of Sterlington (“Sterlington”), appeals a judgment of the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, granting a peremptory exception of prescription in favor of the defendant, the Ouachita Parish Police Jury (“OPPJ”), resulting in the dismissal of Sterlington’s lawsuit. For the reasons that follow, we affirm the trial court’s judgment sustaining the defendant’s exception of prescription.

Facts

By Act 244 of the 1977 Regular Session, the Louisiana Legislature adopted La. R.S. 33:2738.49, authorizing the OPPJ to levy and collect a sales and use tax not to exceed one and one-half percent within that portion of Ouachita Parish outside the corporate limits of the municipalities of Monroe and West Monroe. That portion outside the cities of Monroe and West Monroe consists of the unincorporated area of Ouachita Parish and includes the Towns of Richwood and Sterlington.

Louisiana R.S. 33:2738, which has since been redesignated La. R.S. 47:338.157, provides, in part:

A. The Ouachita Parish Police Jury is hereby authorized to levy and collect a sales and use tax not exceeding one and one-half percent within the territory within the boundaries of the parish of Ouachita, and outside of the corporate limits of the cities of Monroe and West Monroe as said corporate limits may exist at the time the tax is collected.
B. The sales tax so levied shall be imposed by an ordinance of the police jury of Ouachita Parish and shall be levied upon the sale at retail, the use, the lease or rental, the consumption and storage for use or consumption of tangible personal property and on sales of services, all as defined in R.S. 47:301 through 317, within the territory within the boundaries of the parish and outside the corporate limits of the cities of Monroe and West |2Monroe as said corporate limits may exist at the time the tax is collected; provided, however, that the ordinance imposing said tax shall be adopted by the governing body only after the question of the imposition of such tax shall have been submitted to the qualified electors of Ouachita Parish within the territorial area located outside the then existing corporate limits of the cities of Monroe and West Monroe at an election to be conducted in accordance with Part II, Chapter 4, Title 39 of the Louisiana Revised Statutes of 1950 and the majority of those voting in said election shall have voted in favor of the imposition of said tax.

Following the enactment of this statute, the OPPJ called a special election on October 15, 1977. In that election, the eligible voters approved a one-cent sales tax. Since 1977, the tax has been levied and collected without interruption within the above described portion of Ouachita Parish, and the proceeds of the tax have provided approximately 80% of the funding used by the OPPJ to improve, resurface, renovate, operate, and maintain parish roads.

Nonetheless, on April 22, 2013, apparently after a dispute over a road maintenance agreement, Sterlington filed a petition for declaratory judgment seeking to have La. R.S. 47:338.157 declared unconstitutional. In particular, Sterlington alleged that the geographical boundaries authorized by La. R.S. 47:338.157 violate the equal protection and due process provision of the Louisiana Constitution, rendering the statute itself unconstitutional and therefore, the resulting tax, an absolute nullity. The OPPJ responded by filing a peremptory exception of prescription relying on Art. 6, § 35(A) of the Louisiana Constitution, which provides, in part:

|aFor sixty days after promulgation of the result of an election held to incur or assume debt, issue bonds, or levy a tax, any person in interest may contest the legality of the election, the bond issue provided for, or the tax authorized, for any cause. After that time no one shall have any cause or right of action to contest the regularity, formality, or legality of the election, tax provisions, or bond authorization, for any cause whatsoever. If the validity of any election, tax, debt assumption, or bond issue authorized or provided for is not raised within the sixty days, the authority to incur or assume debt, levy the tax, or issue the bonds, the legality thereof, and the taxes and other revenues necessary to pay the same shall be conclusively presumed to be valid, and no court shall ' have authority to inquire into such matters. (Emphasis added.)

A hearing was held on the matter, wherein the trial court found that Sterling-ton’s claim had prescribed pursuant to La. Const. Art. 6, § 35(A). In reaching its decision, the trial court explained that the “rather strong” language set forth in Art. 6, § 35(A) clearly extinguishes the rights of litigants to contest tax elections if not legally raised within 60 days of the election. The trial court also relied on the Louisiana Supreme Court’s interpretation of Art. 6, § 35(A) that “The intent of the framers of the Constitution to prohibit any challenge not raised within the constitutional time limitations is clear and unambiguous.” See Naquin v. Lafayette City-Parish Consol Gov’t, 2006-2227 (La.02/22/07), 950 So.2d 657, 669. This appeal by Sterlington ensued.

Discussion

On appeal, Sterlington argues that the trial court erred in concluding that the limitations period set forth in La. Const. Art. 6, § 35(A) applies to actions challenging the constitutionality of legislation authorizing a tax election. Stated differently, Sterlington contends that because its lawsuit does not contest the actual tax or the validity of the election, Art. 6, § 35(A) |4is simply inapplicable. For example, in order for Art. 6, § 35(A) to apply, Sterling-ton believes that its claim must challenge the vote count, the eligibility of voters, or fraudulent voter conduct associated with the election. Sterlington also raises an additional argument that Art. 6, § 35(A) does not apply to its lawsuit because as an unconstitutional legislative enactment, La. R.S. 47:338.157 is an absolute nullity, thus wholly void and insusceptible to a plea of prescription. We disagree.

When reviewing a peremptory exception of prescription, the standard of review normally requires the appellate court to determine whether the trial court’s finding of fact was manifestly erroneous or clearly wrong. Carter v. Hay-good, 2004-0646 (La.01/19/05), 892 So.2d 1261. However, in this case the parties do not dispute any of the facts pertaining to the issue of prescription. Thus, whether Art. 6, § 35(A) applies to the matter before us presents a question of law, which this Court reviews de novo. See City of New Orleans v. Bd. of Comm’rs of Orleans Levee Dist., 1993-0690 (La.07/05/94), 640 So.2d 237.

As discussed above, La. Const. Art. 6, § 35(A) and its statutory counterpart, La. R.S. 18:1294, both provide a 60-day period barring any claim contesting an election held to incur or assume debt, issue bonds, or levy a tax. La. Const. Art. 6, § 35(A). Following that 60-day period, no one shall have any cause or any right of action to contest the regularity, formality, or legality of the election, tax provisions, or bond authorization, for any cause whatsoever. Id. The statute further provides that if a proper challenge is not raised within this time frame, the authority to levy the tax, |fithe legality thereof, and the taxes and other revenues necessary to pay the tax shall be conclusively presumed to be valid, and no court shall have authority to inquire into such matters. Id.

Fortunately, the Louisiana Supreme Court has had the opportunity to address the applicability of Art. 6, § 35(A) as well as an identical constitutional peremptive provision set forth in bur State’s prior Constitution. In Naquin, supra, at 669, the Court expressed that this 60-day time period is not simply prescriptive, but per-emptive, and that “The intent of the framers of the Constitution to prohibit any challenge not raised within the constitutional time limitation is clear and unambiguous.” Further, and crucial to our decision, the Louisiana Supreme Court in Andrieux v. East Baton Rouge Parish School Bd., 254 La. 819, 227 So.2d 370, 371 (1969), explained that this peremptive period applies to “all cases including those in which the election is attacked on the basis of illegality or constitutionality of the statutes or ordinances under which it has been called or held.”

It should be noted that both parties, as well as the trial court, used the terms prescription and peremption interchangeably throughout the disposition of this matter. It was not until further along in the litigation process that the parties cited to the Louisiana Supreme Court’s interpretation of the constitutional provision and started to refer to Art. 6, § 35(A) as peremptive. In fact, the OPPJ filed a peremptory exception of prescription at the outset of this lawsuit in an attempt to defeat Sterlington’s | nclaim. However, as noted above, jurisprudence provides that Art. 6, § 35(A) is not simply prescriptive, but peremptive. Naquin, supra. It is well settled that peremption differs from prescription. Reeder v. North, 1997-0239 (La.10/21/97), 701 So.2d 1291. As stated in Reeder, supra at 1298:

Although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation; peremption, however, extinguishes dr destroys the right. Public policy requires that rights to which per-emptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a peremptive period. It may not be interrupted or suspended; nor is there provision for its renunciation. And exceptions such as contra non valentem, are not applicable.

Therefore, in accordance with the jurisprudence noted above, and following the strict language set forth in La. Const. Art. 6, § 35(A), which specifically provides that Louisiana courts have no authority to inquire into matters related to tax elections unless a challenge is properly raised within the 60-day constitutional peremptive period, we conclude that the trial court’s decision to bar Sterlington’s claim was correct as a matter of law.

Conclusion

So considering, the trial court’s judgment sustaining the Ouachita Parish Police Jury’s peremptory exception of prescription is affirmed. Costs of this appeal are assessed to the Town of Sterlington in accordance with the provisions of La. R.S. 13:5112 in the amount of $887.85.

AFFIRMED.

      . La. Const. Art. 6, § 35(A) has been adopted into statutory law, and is set forth in its entirety in La. R.S. 18:1294.

      . La. Const. (1921) Art. 14, § 14(n).


author: MOORE, J.

text:
    Ken SEAMAN, Plaintiff-Appellant v. D.E. JIMES, d/b/a D.E. Jimes Drywall, Defendant-Appellee.
    No. 49,422-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.
    Street & Street, Monroe, By: C. Daniel Street, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner By: Walter S. Salley, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   MOORE, J.

hKen Seaman appeals a judgment dismissing his workers’ compensation claim as prescribed. We affirm.

Factual and Procedural Background

Seaman was employed as a drywall finisher at an average weekly wage of $400.02, for a compensation rate of $266.68. On October 26, 2006, he and his employer, D.E. Jimes, were working in a new house on Summerville Drive in the Twelve Oaks Subdivision in southeast Shreveport. Another contractor had previously hung the drywall in the game room, which was located over the garage; Seaman and Jimes came in later to finish it. Someone had laid a sheet of drywall over an attic hatch in the floor of the game room. When Seaman stepped on it, the drywall broke and he fell 10-12 feet to the garage floor. The fall crushed his left ankle and broke his right arm.

Seaman underwent treatment and therapy at LSU Medical Center until May 21, 2007, when a resident physician released him to work with no restrictions. Jimes’s comp carrier, LCTA, paid Seaman temporary total disability (“TTD”) benefits through June 21, 2007, and medical benefits through August 27, 2007.

Apparently, Seaman’s original attorney had problems ascertaining precisely which house and which contractors were involved in his accident. On October 27, 2007, he filed a tort suit against Southern Home Builders and Robert Callahan, individually and d/b/a TLC Drywall. A few months later, on February 22, 2008, he filed an amended petition adding Michael Duggan, individually and d/b/a Duggan & Fine Construction as defendants.

l2On March 18, 2008, the First JDC dismissed Southern Home Builders with prejudice “on the consent of the parties.” On July 7, 2008, the court dismissed Duggan & Fine on an exception of no cause of action. This left Callahan, TLC Drywall and Michael Duggan, individually, as defendants. The portion of the suit record filed in evidence in the compensation claim does not show that any of the remaining defendants ever filed an answer or that Seaman took any further steps to pursue his action against them.

Represented by new counsel, Seaman filed the instant disputed claim for workers’ compensation on October 1, 2012. He alleged that Callahan had set the trap in the game room floor, that he (Seaman) had a pending tort suit against him, and this interrupted prescription on the comp claim. He demanded supplemental earnings benefits (“SEB”), medicals, and a penalty and attorney fee.

Jimes’s carrier, LCTA, argued that the claim was prescribed on its face, coming over one year after the last payment of TTD and three years after the last payment of SEB or medical benefits: the last medical benefit was paid August 27, 2007; hence, the disputed claim, filed October 1, 2012, was over two years after prescription accrued. LCTA conceded that a civil suit against a tortfeasor would interrupt prescription, but argued that the parties took no step in its prosecution after July 7, 2008, when Duggan & Fine was dismissed; hence, it was deemed abandoned as of July 7, -2010, under La. C.C.P. art. 561 A(l). LCTA further argued that for purposes of interrupting prescription, an abandoned suit “is considered never to have occurred,” La. C.C. art. 3463. It submitted that the claim was prescribed.

| ^Action in the OWC

The matter came for a hearing on November 5, 2013. Seaman was the only witness, describing how the accident occurred, his injuries, the two jobs he held since the doctor released him, and the fact that he began drawing social security in August 2013, when he turned’63. He admitted he had been able to work some 13 months after the accident, from July 2007 through August 2008, but complained that his ankle was crushed and painful, he could not stand on stilts as required for reaching high places, and he did not think he could work 40 hours a week anymore. On cross-exam, he admitted he did not see who actually placed .the sheet of drywall over the hole in the floor of the game room, and that his first attorney had been unable to find out which house was involved in the accident. Both sides introduced certified copies of portions of Seaman’s tort suit and medical records from LSU Medical Center. LCTA offered its comp payment history.

■ The WCJ rendered a 4J/~page opinion, noting that because it was filed over five years after benefits were terminated, Seaman’s claim was prescribed on its face. The tort suit, however, interrupted prescription as to all solidary obligors, La. C.C. art. 3462, and for purposes of workers’ compensation, a suit against a tortfea-sor is deemed to interrupt prescription as to the employer, Bradley v. Mike Rougee Corp., 95-967 (La.App. 5 Cir. 6/25/96), 676 So.2d 1111. Nevertheless, the WCJ could find no evidence of any activity in the tort case since July 2008, and thus that case was abandoned for lack of prosecution, La. C.C.P. art. 561. Further, an ^abandoned case is deemed never to have occurred, for purposes of prescription, La. C.C. art. 3463. Since the tort suit effectively never occurred, it could not interrupt prescription in the compensation claim. The WCJ further observed that Seaman could not prove whether either of the remaining defendants in the tort suit was actually the one who laid the drywall over the hole. The WCJ later signed a judgment dismissing all claims.

Seaman has appealed, raising three assignments of error.

The Parties’Positions

By his first assignment of error, Seaman urges the WCJ erred in finding the claim was prescribed. He submits that this was legal error, invoking de novo (rather than manifest error) review, Young v. Young, 06-077 (La.App. 3 Cir. 5/31/06), 931 So.2d 541. He contends that his tort suit was still pending when he filed the compensation claim, thus interrupting prescription on the latter. He shows that a suit against a tortfeasor interrupts prescription against the employer, Bradley v. Rougee Corp., supra; Wilson v. City of Shreveport, 28,846 (La.App. 2 Cir. 11/1/96), 682 So.2d 882. He concedes that La. C.C.P. art. 561 defines abandonment as failure to take a step in the prosecution for three years, but argues that under that article “a motion to set aside dismissal” may be made, and the ruling thereon subject to appeal; no formal dismissal has been entered in his tort suit; ergo, “these remedies are still available.” He reiterates the suit history, showing that Callahan and Duggan were never officially dismissed, thus creating the “mere possibility of abandonment of the suit.” He argues that without an | Bactual dismissal, his suit cannot be deemed abandoned. He also shows that there are exceptions to abandonment: (1) when failure to prosecute is caused by circumstances beyond the plaintiffs control, or (2) when the defendant waived his right to plead it, Coe v. State, 32,635 (La.App. 2 Cir. 2/1/00), 751 So.2d 432. He argues that filing an answer by the defendant is a waiver of abandonment, citing Bell v. Kreider, 04-594 (La.App. 5 Cir. 11/30/04), 890 So.2d 648, writ denied, 2005-0029 (La.4/29/05), 901 So.2d 1062, and Thibaut Oil Co. v. Holly, 2006-0313 (La.App. 1 Cir. 2/14/07), 961 So.2d 1170. He concludes there is “no support” for the theory woven by the WCJ and the judgment should be reversed.

LCTA responds that because the claim was prescribed on its face, the burden shifted to Seaman to prove an interruption, and the WCJ was not plainly wrong to find he failed that burden. It stresses that abandonment is “operative without formal order,” La. C.C.P. art. 561 A(3), and no formal order of dismissal is required, Yates v. Bailey, 34,274 (La.App. 2 Cir. 12/6/00), 774 So.2d 1103; Coe v. State, supra. Specifically, it contends that an abandoned suit does not toll the running of prescription, Phillips’ Bar & Rest. Inc. v. City of New Orleans, 2012-1396 (La.App. 4 Cir. 4/24/13), 116 So.3d 92, units denied, 2013-1410 (La.10/11/13), 123 So.3d 1227, 1226, and citations therein. LCTA concedes the exceptions to abandonment, but urges that Seaman proved no circumstances beyond his own control and no waiver by the tort defendants. Finally, it submits that even if Seaman proved that the remaining tort defendants, Callahan and Duggan, were solidary obligors, he did not prove that either of them was | ^responsible for his injuries. LCTA concludes the judgment should be affirmed.

Discussion

All claims for workers’ compensation payments must be filed within one year of the accident or, when payments have been previously made, within one year of the final payment of SEB or three years of the last payment of TTD or medical benefits. La. R.S. 23:1209 A(l), (2), C. The record plainly shows that LCTA last paid Seaman medical benefits on August 27, 2007. The WCJ correctly found that the instant disputed claim, filed October 1, 2012, was prescribed on its face. The burden of proof shifted to Seaman to show that the claim was not prescribed. Cichirillo v. Avondale Indus. Inc., 2004-2894 (La.11/29/05), 917 So.2d 424; Hollingsworth v. Choates, 42,424 (La.App. 2 Cir. 8/22/07), 963 So.2d 1089. The WCJ’s findings of fact as to prescription are subject to the manifest error-clearly wrong standard of review. Wells v. Zadeck, 2011-1232 (La.3/30/12), 89 So.3d 1145; Taylor v. Broomfield, 46,590 (La.App. 2 Cir. 9/21/11), 73 So.3d 485. There is no merit to Seaman’s contention that the ruling in this case is subject to de novo review.

A timely filed tort suit against the employer interrupts prescription as to a workers’ compensation claim. Burner v. Malmac Energy Corp., 592 So.2d 1370 (La. App. 2 Cir.1992). A timely filed tort suit against a tortfeasor in a court of competent jurisdiction and venue will also interrupt prescription against the employer, when the tortfeasor and employer are soli-dary obligors. Wilson v. City of Shreveport, supra; Bradley v. Rougee \nCorp., supra. The record does not show that Seaman ever filed a tort suit against his employer, Jimes, but he did file a timely suit against various alleged tortfeasors (Southern Home Builders, Robert Callahan, TLC Drywall, Michael Duggan and Duggan & Fine Construction) who may or may not have been solidarily liable with Jimes. The tort suit may have interrupted prescription as to the compensation claim.

The interruption of prescription from filing a suit is regulated by La. C.C. art. 3463, which provides:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time * * * or fails to prosecute the suit at trial.

An action “is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” La. C.C.P. art. 561 A(l). This article further provides:

A. (3) This provision shall be operative without formal order, but, on ex parte motion of any party of other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.

The jurisprudence confirms that a “suit which has been abandoned for nonaction during [the statutory period] does not constitute a legal interruption to the course of prescription.” Charbonnet v. State Realty Co., 155 La. 1044, 99 So. 865 (1924); Phillips’ Bar & Rest. v. City of New Orleans, supra. It is not the dismissal of the first suit that causes it to lose |Rthe effect of interrupting prescription, but rather the plaintiffs allowance of three years to elapse without taking any steps in the prosecution of the case that renders the interruption as “never to have occurred.” Long v. Chailan, 196 La. 380, 199 So. 222 (La.1940); Phillips’ Bar & Rest. v. City of New Orleans, supra: For this reason, the abandonment is operative without formal order. La. C.C.P. art. 561 A(8).

Seaman contends that Art. 3463 does not apply to this case because none of the remaining tort defendants filed an ex parte motion for dismissal, as provided in Art. 561 A(3); he also contends that even if such a motion were filed and granted, he would be entitled to file a motion to set aside the dismissal and to appeal the ruling thereon, under Art. 561 A(4) and (5). As long as these options are open to him, he contends, the dismissal is not really official, and the tort suit may be revived. This line of reasoning, however, disregards the opening statement of the subsection, “This provision shall be operative without formal order,” and is therefore unavailing. Formal dismissal is not required to negate the interruption of prescription; abandonment itself accomplishes this end. Phillips’ Bar & Rest. v. City of New Orleans, supra. The instant record easily proves abandonment of the tort suit. We perceive no manifest error in the WCJ’s conclusion to this effect.

We reiterate the two exceptions to abandonment that we previously recognized in Coe v. State, supra. However, the record contains no evidence that Seaman’s failure to prosecute the tort suit was caused by circumstances beyond his control, or that any of the defendants therein ^waived the right to plead abandonment. The record does not show that any of Seaman’s tort defendants fax-filed a timely motion to set the case for trial, as occurred in Thibaut Oil Co. v. Holly, supra, or filed a post-abandonment answer to petition, as in Bell v. Kreider, supra. The only conclusion this record will support is the plaintiffs failure to prosecute the tort suit. There is no manifest error in the WCJ’s conclusion that the compensation claim was untimely. The assignment error lacks merit; the judgment is affirmed.

Conclusion

Because we affirm the finding of prescription, we pretermit any consideration of Seaman’s other assignments, which urge his entitlement to SEB, a penalty and attorney fee. The judgment is affirmed at Seaman’s costs.

AFFIRMED.


author: PITMAN-, J. CARAWAY, J.,

text:
    Charles A. TAYLOR, et al, Plaintiffs/Appellants v. Elicia L. MORRIS, et al, Defendants/Appellees. Charles A. Taylor, et al, Plaintiff/Appellant v. Coastal Land Services, Inc., Defendant/Appellee.
    Nos. 49,425-CA, 49,426-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Kevin J. Severson, Covington, for Appellants, Charles A. Taylor, Joel Taylor & Justin Taylor.
    Walter F. Johnson, III, Shreveport, for Appellees, Hamilton Heirs.
    Liskow & Lewis, Lafayette, By: Lawrence P. Simon, Jr., Brian W. Capell, for Appellee, Coastal Land Services, Inc.
    Sarah Morris Estate, Pro Se.
    Before STEWART, CARAWAY & PITMAN, JJ.
   PITMAN-, J.

| plaintiffs, Charles A. Taylor, Joel Taylor and Justin Taylor (“Landowners”), sought a declaration that the mineral servitude burdening their land expired by operation of a ten-year fixed term found in their deeds. Defendants, Elicia L. Morris, Reginald D. Morris, David D. Williams, Robert Williams, Barbara F. Williams Greenway, Artie D. Williams, Rebecca F. Stephens, Elizabeth Freeman Roblow, Yerisa B. Ross Freeman Williams, Rosemary Hamilton Hinman, Sandra J. Hamilton, Sherri Hamilton Worman, Steven Hamilton, Jerry W. Hamilton, Roger Hamilton, Patricia Hamilton, Larry E. Hamilton, Juanita Hamilton Mawhorter, Edwin Binning, Rosemary Binning McGee, Bobby Binning and Sharon K. Ahlfors Fimpel (“Servitude Owners”), sought a declaration that the servitude was governed by the rules of prescription and that prescription had been interrupted by good-faith drilling operations within the ten-year period of the servitude’s creation. The Landowners had also sued the current mineral lessee, Coastal Land Services, Inc. (“Coastal”), in a separate action, seeking a declaration that the mineral leases granted by the Servitude Owners had been terminated as of January 2009. The suit against Coastal was consolidated in the lower court with the suit between the Landowners and the Servitude Owners. Cross motions for summary judgment were filed by all parties. The trial court granted the Servitude Owners’ and Coastal’s motions for summary judgment and denied the Landowners’ motion for summary judgment. The Landowners appeal that judgment. For the reasons set forth herein, we affirm.

12.FACTS

In January 1999, Taylor Properties, Inc., purchased a 120-acre tract of land in De-Soto Parish in five separate transactions from the Servitude Owners. Each deed contained a reservation of a mineral servitude in the following language:

Vendor hereby reserves all oil, gas and/or mineral rights above and/or below the ground for a period of ten (10) years from the date of this Cash Sale Deed.

On May 2, 2008, Taylor Properties, Inc., transferred ownership of the 120-acre tract to the Landowners in the following amounts: Charles Taylor, 2/5 interest in 48 acres, more or less; Joel Taylor, 1/5 interest in 24 acres, more or less; and Justin Taylor, 2/5 interest in 48 acres, more or less. Drilling operations began on a unit well on October 21, 2008, within ten years of the original sale of the property to Taylor Properties, Inc. The current mineral lessee, Coastal, has produced an affidavit of David E. Carpenter, an employee of Shell Exploration and Production Company, which drilled the well for the operator. Mr. Carpenter’s affidavit stated that the well was “spud” on October 21, 2008, went into production into the pipeline on September 24, 2009, and has produced since that date to the date of the affidavit with only a brief lapse from April 5, 2010, through May 15, 2010, when it was shut in for maintenance operations.

In August 2009, the Landowners filed a petition for declaratory judgment, damages and attorney fees and claimed that the acts of sale by which the property was transferred to their ancestor in title contained term mineral reservations which expired in January 2009. They claimed to be thejjowners of the entire surface and minerals in the tract and sought a declaratory judgment recognizing their ownership. The Landowners claimed they have been damaged by the failure of the Servitude Owners to furnish recordable acts evidencing the extinction or expiration of the term mineral servitudes. The Landowners prayed for a judgment declaring the mineral servitudes to have expired in January 2009 and that such mineral servitudes were of no further force or effect, for damages and for attorney fees.

Cross motions for summary judgment were filed with the Landowners asserting that the mineral reservation created a fixed, ten-year term, and the Servitude Owners and Coastal (in separate motions) asserting that the customary ten-year prescriptive period was implied and was subject to intérruption by the good-faith use of the servitude.

The Landowners submitted the affidavit of James Taylor, as well as his deposition, in support of their motipn for summary judgment. Mr, Taylor stated that he was the person who negotiated with the vendors of the land and that:

In my negotiations with the Vendor on the sale of the Property which was accomplished by the deeds.... it was agreed by the parties that the mineral reservation would be for 10 years and 10 years only which is reflected in those deeds.

In Mr. Taylor’s deposition, he testified that an attorney had no role in the negotiations and that he was the person who negotiated for the vendees. He also stated that Ms. Sara Morris did all the negotiating for the vendors. He never spoke to any of the other vendors regarding the terms of the sales. When questioned about his understanding of mineral servi-tudes in 1 .(Louisiana at the time of the negotiations, he stated, “We just talked. I mean ... there wasn’t no big understanding of anything.” When asked if he had any understanding of what an interruption of prescription meant in Louisiana at the time of the acts of sale, he responded, “Interruption of prescription? No, tell me.” He discussed the negotiations between them and stated:

[s]he called me and said that she had ... decided to sell the property ... and that she wanted to make a Louisiana reservation and we talked [sic] I told her, I said, you know, I knew I had offered her way more money than— there was two bids on the property ... and I knew I had offered way more than the other bids. And ... we just kept hitting back and forth on the — on the reservation and so forth and it ended up — the last thing she said was will you let me keep the minerals for 10 years? And I said yes and I’d get Herman to write it up that way. And Herman is the lawyer I approached to write the deeds up.

Mr. Taylor testified that he approached the attorney to draw up the deeds and told him the vendors wished to reserve the minerals for ten years and ten years only. The attorney originally prepared the deeds without any mineral reservations. When Ms. Morris refused to sign the deed to her property, Mr. Taylor instructed the attorney to revise the deeds to include the mineral reservation. The vendors all signed the revised deeds.

The Servitude Owners supported their own motion for summary judgment and claimed the deed prepared by Taylor Properties, Inc., did not include any provision relative to interruption or suspension of the mineral servitude by use. Without the specific agreement and language in a document varying the provisions of law applying to mineral servitudes, the |Bstatutory scheme of term, interruption and suspension of prescription of nonuse applies. They further argued that there had been use of the servitude by virtue of drilling operations on the land. Thus, prescription of nonuse had been interrupted.

In support of their motion for summary judgment, the Servitude Owners produced the affidavit of Elizabeth Freeman Rob-low, which stated that she received a letter with the first proposed deed, which she recalls was from Mr. Lawson, and that she later received for execution a second deed revised to include the mineral reservation. She signed the second (revised) deed. She avered that she did not participate in any manner in the preparation of the deeds and that “At no time did anyone mention to me or elaborate that the mineral reservation had a limited life or that it could not be interrupted by drilling.” Her affidavit states that she is one of the three surviving persons who actually signed the deeds which created the mineral servitudes that are the subject of this lawsuit. Her mother, Bernice Freeman Williams, and her sister, Rebecca Katherine Freeman Stephens, are also alive. Ms. Morris and Ms. Binning have passed away since the execution of the deeds.

Ms. Roblow’s sister, Rebecca Katherine Freeman Stephens, also provided her affidavit which reiterates that she was aware that the deed contained a reservation of minerals; however, nothing in the communications mailed to her indicated anything unusual about that reservation. Ms. Stephens states, “At no time did anyone mention or |,¡elaborate that the mineral reservation had a limited life or that it could not be interrupted by drilling or other operations.”

Coastal produced other affidavits by various landmen and representatives of oil companies who had knowledge of the drilling and production on the property. These were filed in support of Coastal’s motion for summary judgment and indicate that a compulsory unit was created on the property by order dated June 18, 2008. Attached to the affidavits were copies of well history indicating that drilling activity began October 21, 2008. The affidavit of the employee of Shell Exploration and Production Company stated the well first flowed to a production facility on September 24, 2009, and has been in production almost continuously since then.

The trial court considered all of the motions and concluded that, pursuant to the law found in the Mineral Code, specifically, La. R.S. 31:74, and the case of St. Mary Operating Co. v. Champagne, 06-984 (La.App.3d Cir.12/6/06), 945 So.2d 846, mit denied, 07-0301 (La.4/5/07), 954 So.2d 140, the phrase “for a period of ten years” was a restatement of the default prescriptive period assumed into all mineral rights created in the State of Louisiana because the parties did not specifically state otherwise. Since there was no such affirmative statement in the deeds specifying that the mineral servitude created for a period of ten years would not be subject to prescription, it was deemed to be subject to prescription. The trial court found that prescription was interrupted by good-faith drilling operations within ten years. For those reasons, the motions of the Servitude Owners |7and Coastal were granted, and the Landowners’ cross motion was denied. The Landowners now appeal.

DISCUSSION

The salient issue presented here is whether the mineral reservation created a fixed, ten-year term, or whether the parties simply restated the customary ten-year prescriptive period, making it subject to interruption by virtue of good-faith drilling operations within the ten years of the servitude’s creation.

The Landowners argue that the trial court erred in finding that the language in the deed created a perpetual servitude limited only by the prescription of ten years’ nonuse. They also argue that the trial court committed error when it found that the prescriptive period of nonuse is “assumed” into all mineral reservations, even those of a duration or fixed term of ten years or less. The Landowners further assert that the trial court committed error when it found the language reserving the mineral servitude to be ambiguous, thus requiring interpretation of those words beyond their clear meaning. They contend that the words of the reservation clearly imply a starting date and a date on which the servitude would end, thereby creating a specified term for the servitude. They also argue that the trial court committed error by applying the comments in the Mineral Code, specifically those to La. R.S. 31:74, instead of applying precepts found in the Louisiana Civil Code.

The Servitude Owners and Coastal argue that the trial court correctly held that the language in the deeds created a mineral servitude only and that, ^although limitation of terms of servitudes and limitations of prescriptive periods are sanctioned by La. R.S. 31:74, the intent to renounce the prescriptive regime must be clear and unequivocal. They further argue that, although the language reserving the mineral servitudes clearly stated that the servi-tudes ran from the date of each deed for a period of ten years and would be in effect until January 2009, nothing was said about whether the prescription of nonuse would, or could, be interrupted by the use of the servitudes.

In considering the trial court’s rulings on a summary judgment motion, we apply a de novo standard of review. Summary judgment should be granted where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 12-2055 (La.3/19/13), 112 So.3d 187; Nitro Energy, L.L.C. v. Nelson Energy, Inc., 45,201 (La.App.2d Cir.4/14/10), 34 So.3d 524.

The Mineral Code is found in Title 31 of the Louisiana Revised Statutes. The basic mineral rights that can be created by a landowner are the mineral servitude, the mineral royalty and the lease. Mineral rights are real rights and are subject either to the prescription of nonuse for ten years or to special rules of law governing the term of their existence. La. R.S. 31:16. A mineral servitude can be extinguished by prescription resulting from nonuse for ten years or an expiration of time for which the servitude was | ^granted or the happening of the dissolving condition attached to the servitude. La. R.S. 31:27.

Pursuant to La. R.S. 31:3, unless expressly or impliedly prohibited from doing so, individuals may renounce or modify what is established in their favor by the provisions of the Mineral Code if the renunciation or modification does not affect the rights of others and is not contrary to the public good. In fact, La. R.S. 31:72 provides that parties to an act creating a mineral servitude may alter the applicable legal rules, subject to certain limitations in the Mineral Code. One of those limitations is found In La. R.S. 31:74, which states as follows:

Parties may either fix the term of a mineral servitude or shorten the applicable period of prescription of nonuse or both. If a period of prescription greater than ten years is stipulated, the period is reduced to ten years.

|inIn St. Mary Operating Co. v. Champagne, supra, the vendors of a parcel of land sold the property pursuant to a cash sale deed which included the following clause:

Vendors reserve unto themselves all of the minerals underlying or which may be produced from the above described tracts for a period of ten years, this being a reservation of royalties, executive rights, bonuses, delay rentals, and all other mineral rights whatsoever.

A dispute arose as to the ownership of the minerals produced from a well on the subject property, and the operating company invoked a concursus proceeding. The current owners of the land filed a motion for summary judgment claiming the language in the cash sale deed created a ten-year fixed term mineral servitude as opposed to a mineral servitude subject to the rules of prescription. The servitude owners filed their own motion for summary judgment. The trial court granted the summary judgment filed by the current landowners and denied the servitude owners’ motion, finding the deed created a ten-year fixed term mineral servitude, which was not subject to the rules of prescription. The servitude owners appealed.

The third circuit reversed and found that the reservation of a mineral servitude for a period of ten years merely restated the default prescriptive period assumed in all mineral rights created in the state. Thus, this particular mineral servitude had not prescribed. It further found that the deed failed to specify that the ten-year period was the term of the servitude rather than the prescriptive period. La. R.S. 31:3, 31:16 and 31:27.

InThe Champagne, supra, court stated that the cash sale deed did not mention prescription at all, nor did it state in clear terms that the ten-year period would be a term not subject to continuation by the interruption of prescription. The court noted that the comments to La. R.S. 31:74 explained that, if a party wanted to create a term and deny the benefit of the interruption of prescription, that intention had to be specified. The court found that the phrase “for a period of ten years” was a restatement of the default prescriptive period assumed into all mineral rights created in the State of Louisiana because the parties did not specifically state otherwise. Because there had been drilling within the ten-year period after the deed was signed, the mineral servitude was deemed to continue to exist until there was a ten-year lapse in the use of the servitude.

The factual situation of the Champagne, supra; case is identical to that of the case at bar. After a de novo review of the record, we find that the language in the deeds by which the mineral servitudes were created said nothing about a limitation of the ten-year prescriptive period imposed by law. We note that Mr. Taylor’s affidavit indicates that he intended the servitude to be “for 10 years and 10 years only,” but the language of the deed does not include the word “only.” Further, the countervailing affidavits filed by the Servitude Owners state that they were unaware of any limitation on their mineral servitudes. In the interpretation of a contract, when there is a doubt which cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished the text. La. C.C. art. 2056. In this case, the Landowners supplied the contracts | ^containing the mineral reservation. Since La. R.S. 31:74 provides that parties may either fix the term of a mineral servitude or shorten the applicable period of prescription of nonuse or both, and the language of the deed creating the mineral servitudes at issue in this case was silent regarding the pertinent prescriptive period and whether it was subject to interruption, we find that the ten-year prescriptive period implied by law was interrupted by the production of minerals within the ten years following the creation of the servitude. We, therefore, find the Landowners’ assignments of error to be without merit.

CONCLUSION

Based on the foregoing, the judgment of the trial court granting the motions for summary judgment filed by Elida L. Morris, Reginald D. Morris, David D. Williams, Robert Williams, Barbara F. Williams Greenway, Artie D. Williams, Rebecca F. Stephens, Elizabeth Freeman Roblow, Verisa B. Ross Freeman Williams, Rosemary Hamilton Hinman, Sandra J. Hamilton, Sherri Hamilton Worman, Steven Hamilton, Jerry W. Hamilton, Roger Hamilton, Patricia Hamilton, Larry E. Hamilton, Juanita Hamilton Mawhorter, Edwin Binning, Rosemary Binning McGee, Bobby Binning, Sharon K. Ahlfors Fimpel and Coastal Land Services, Inc., and denying the motion for summary judgment filed by Charles A. Taylor, Joel Taylor, and Justin Taylor, is affirmed. Costs of appeal are assessed to Charles A. Taylor, Joel Taylor and Justin Taylor.

AFFIRMED.

CARAWAY, J., concurs with written reasons.

CARAWAY, J.,

concurring.

| ,This mineral reservation dispute presents a unique contractual interpretation setting in which the literal words for a term period of years are being avoided and effectively interpreted out of the contract. The majority and trial court instead interpret the literal statement reserving a mineral servitude “for a period of ten years” as creating a servitude of uncertain and indefinite duration. The “ten year period” is no longer literally a term of years but only an implied reference to the 10-year prescription for nonuse. Are the clear words of the contract therefore being disregarded under the pretext of pursuing a presumed intent? I concur to give the Landowners an answer to that question.

The Landowners correctly rest their argument on the Civil Code’s first rule for the interpretation of contracts:

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. C.C. art. 2046.

In this unusual setting, it cannot be said that the fixing of a mineral servitude for “a period” or term of ten years produces “absurd consequences.” This is because the Mineral Code expressly allows parties to “fix the term of a mineral servitude.” La. R.S. 31:74. Nevertheless, because of the nature of the mineral servitude as discussed below, a fixed-term mineral servitude inherently promotes the possibility of some harsh, if not absurd, consequences. This, in my opinion, opens the door to an unusual type of ambiguity, raising the possibility of two contractual 12constructions: one, resting on the very strong implication that the parties did not intend to extinguish the mineral servitude at a fixed time, and the other, resting on the clear and explicit language for a 10-year “period” of the servitude’s existence or term.

A provision in a contract fairly susceptible of two constructions is uncertain and ambiguous. Rudman v. Dupuis, 206 La. 1061, 20 So.2d 363 (1944); Allied Chemical Corp. v. Dye, 441 So.2d 776 (La.App. 2d Cir.1983), writ denied, 444 So.2d 119 (La. 1984). Under such circumstances, the courts must determine the meaning that best conforms to the parties’ intended object of the contract. La. C.C. art. 2048. To settle the choice between two possible constructions and end the ambiguity, the intentions of the parties can be ascertained by consideration of evidence outside the instrument. Rudman, supra, 206 La. at 1066. Additionally, the interpretation of the instrument may be aided by the other rules of construction provided in the Civil Code. La. C.C. arts. 2047 et seq.

The difficulty posed in this case by the literal language for the “ten year period” is highlighted by the early case of Hodges v. Norton, 200 La. 614, 8 So.2d 618 (1942), where the Louisiana Supreme Court recognized that a mineral servitude “reserved for a period of 15 years” created a fixed-term servitude. Other than the difference between 10 and 15 years, which is an important distinction, Hodges’s “period of years” is the same language used in the present reservation. The Hodges court understood the plain import of those words as literally expressing a term that could extinguish the servitude. Thus, I conclude from Hodges that one construction of the l8present reservation (hereinafter the “Literal Construction”) is that it expressed a fixed term.

Nevertheless, the difference in the number of years from 15 to 10 does distinguish Hodges from the present dispute. When minerals are reserved for a period of time extending beyond 10 years, the parties are charged to know that ’ the extent of the mineral servitude is subject to the supplemental provisions of the law of the prescription of nonuse and that use of the servitude must occur in the first 10 years. Therefore, it is more clearly understood that the 15-year concept expressed in the Hodges contract has nothing to do with prescription and must be interpreted as a fixing of a term. The Hodges opinion certainly viewed that language as fixing a 15-year term at which time the mineral servitude was extinguished.

Unlike Hodges, the 10-year reservation in the present case aligns directly with the 10-year regime of prescription, strongly raising the presumption that the parties were only referring in their contract to such normal prescription (hereinafter the “Prescription Construction”). Nevertheless, a simple expression of a mineral reservation, without any reference to a period of years, also imposes the prescriptive 10-year period of nonuse upon the mineral servitude. Therefore, the parties’ addition of the 10-year language in their mineral reservation was arguably redundant, unless a term was intended.

What makes the Prescription Construction a viable possible interpretation, however, is the nature of the mineral servitude. The mineral servitude is the right of enjoyment of land belonging to another for the | ^purpose of exploring for and producing minerals. La. R.S. 31:21. The exploration and production activities are extensive and expensive, resulting in operations, equipment and fixtures that may remain on the servient estate for years during continuing operations and production. Additionally, the owner of the servitude usually is not an oil and gas company. Therefore, the owner’s use of the mineral servitude is conducted under lease agreements with operators, and those operators’ economic investments for the discovery and production of oil and gas would not be expected under a lease from a fixed-term mineral seiwitude owner.

The early Louisiana cases that recognized the possibility of a fixed-term mineral servitude drew from the expressions within the Civil Code allowing predial ser-vitudes on a term. See, former Civil Code art. 821 (1870) and La. C.C. art. 773. The predial servitudes identified in the Civil Code, such as the right of passage or the right of drawing water, might be expected to be limited on occasion for a period of 5 or 10 years. A grant of such predial servitude “for a period of 10 years” can be taken literally because the use of the ser-vient estate by the servitude’s owner is intermittent without any allowance for the placement of fixtures on the servient estate or beneath its surface for constant oil and gas activities. The nature of oil and gas activities desired by one reserving a mineral servitude inherently includes long-term operations perpetually tied to uncertain events for the successful exploration and development of the servient estate.

From this understanding of our law and the nature of the mineral servitude, I find that the disputed language in the mineral reservation is | fifairly susceptible of the Literal Construction and the Prescription Construction, making the contract uniquely ambiguous. The cited jurisprudence and contractual interpretation rules of the Civil Code indicate that extrinsic evidence can be used to determine the intention of the parties. However, in the absence of such clarifying extrinsic evidence, I would hold that the near absurdity of a fixed-term mineral servitude on land, undeveloped for oil and gas, should make the Prescription Construction the priority interpretation which a court should apply.

Following these principlés in this summary judgment setting, the Servitude Owners rest their case on the face of the language of the mineral reservation. They deny that any extrinsic evidence exists which demonstrated that they intended to create a servitude that would be extinguished in 10 years despite existing discovery efforts for oil and gas or ongoing production at the end of the alleged term. Servitude Owners further receive the benefit of the rule of construction of Civil Code Article 2056, as the ambiguous provision must be interpreted against the party who furnished its text. La. C.C. art. 2056. Moreover, opposition evidence was not brought forth by the Landowners reflecting the thoughts of the attorney who prepared the deeds for the original landowner or whether the attorney shared those thoughts with the original mineral servitude owners.

Since the Prescription Construction should be the priority interpretation for this mineral reservation, the Landowners were required to produce factual support to establish that they would be able to satisfy their evidentiary burden at trial demonstrating that the parties intended the |fimineral servitude to be on a fixed term. La. C.C.P. art. 966(C)(2). In this case, the Landowners brought forth no extrinsic evidence of quality in the form of written exchanges between the original parties to the deeds. Such exchanges would have to reveal a mutuality of intent for the mineral servitude to be extinguished at the end of 10 years, ending all existing successful operations on the property by the Mineral Servitude Owners and their mineral lessees. James Taylor’s affidavit and deposition do not reveal sufficient communication between the parties demonstrating a mutual understanding of the parties concerning the harsh results of a terminable mineral servitude.

Notably, the authors of the Comment to Article 74 of the Mineral Code had much discussion about the need for construction of instruments and interpretation necessary for this difficult contractual snare of circumstances. Clear and explicit words of a contract, however, need no further interpretation. While offering “guidelines for construction,” the Comment never identifies exactly what language or lack thereof might open the door for interpretation. Yet, the Comment indicates that it would be “rare” that a party would ever create in his favor a fixed-term mineral servitude. That rare and unusual event, which would border on the absurd for this unexplored property, places the Literal Construction in much doubt. Therefore, the choice between the two possible constructions must be the Prescription Construction because the Landowners brought forth no evidence of the parties’ mutual intent to the contrary.

      . The deeds were prepared by Mr. Herman Lawson, an attorney in Mansfield, Louisiana.

      . The comments to La. R.S. 31:74 state in pertinent part as follows:
      Consideration was given to the matter of establishing rules of construction to aid the courts in determining whether parties intend to fix the duration of a mineral servitude or to subject it to a prescriptive period other than that which would be imposed if the parties were silent. However, it was determined merely to state some guidelines for construction in this comment. In the event of silence as to the term of a mineral servitude, the right created is permanent or perpetual, but it is subject to loss by accrual of the prescription of nonuse. Parties to an agreement which does not specify a fixed term or a prescriptive period other than the legal one are, of course, free to limit the duration of the rights created or to alter the prescriptive period by subsequent agreement, subject to the same limitations applicable to the original instrument.

      It is more difficult to construe instruments specifying a period less than ten years. Unless the creation of a mineral servitude is a part of a security transaction, it is rare that a party will, in the ordinary situation, contract for the creation in his favor of an interest with a fixed term less than ten years. Thus, it is suggested that in the absence of some expression to the contrary in the instrument in question, the specification of a period less than ten years for a mineral servitude should be construed as an agreement on a prescriptive period less than ten years, and the interest should be considered subject to the rules of use and thus renewable by exercise of the rights granted or reserved. Parties are, of course, free to specify that the stated number of years is the term of the interest and not a prescriptive period. (Emphasis added.)