author: BROWN, Chief Judge. STEWART, J., PITMAN, J. BROWN, Chief Judge,

text:
    Claudia Simone FRANKLIN, Plaintiff-Appellant v. CAMTERRA RESOURCES PARTNERS, INC., Rodney Arbuckle, and Petrohawk Properties, L.P., Defendants-Appellees.
    No. 48,021-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 22, 2013.
    Opinion on Rehearing Aug. 14, 2013.
    Blanchard, Walker, O’Quin, & Roberts, Shreveport, LA, by M. Thomas Arceneaux, Drew E. Smith, for Plaintiff/Appellant, Claudia S. Franklin and Intervenor/Appel-lant, George S. Franklin, Jr.
    Hargrove, Smelley, Strickland, & Langley, Shreveport, LA, by Joseph L. Har-grove, Jr., B. Lee Carr, for Defendant/Ap-pellee, Camterra Resources Partners, Inc.
    Liskow & Rhymes, by Jamie D. Rhymes, Lafayette, LA, Jason P. Berger-on, Baton Rouge, LA, April L. Rolen-Ogden, Lafayette, LA, for Defendant/Ap-pellee, Petrohawk Properties, L.P.
    Weiner, Wiess, & Madison, Shreveport, LA, by John McGinty Frazier, for Defendants/Appellees, Rodney Arbuckle & Carol Arbuckle.
    Before BROWN, STEWART, and PITMAN, JJ.
   BROWN, Chief Judge.

11 Plaintiff, Claudia Simone Franklin, and plaintiff-in-intervention, George S. Franklin Jr., appeal from a trial court judgment granting motions for summary judgment filed by defendants, Rodney and Carol Ar-buckle, Camterra Resource Partners, Inc., and Petrohawk Properties, L.P. For the reasons set forth herein, we affirm.

Facts and Procedural History

This appeal stems from competing claims to the mineral rights of property located in DeSoto Parish, which is described as:

Northeast Quarter of Northeast Quarter of Section 30, Township 15 North, Range 14 West, DeSoto Parish, Louisiana, LESS AND EXCEPT, the East 13 acres thereof, containing 27 acres, more or less, together with all buildings and improvements located thereon.

The property was the separate property of George S. Franklin Jr. (“Franklin”), and he had full ownership of the property. On July 25, 2000, he transferred the property to the Franklin Educational Trust (“the Trust”) in compliance with certain court orders related to his divorce from Wendy Stuart. The transfer included an express reservation of the property’s mineral rights by Franklin. The transfer was recorded in the public records on August 3, 2000. Both Franklin and Ms. Stuart were named as trustees of the Trust.

Rodney and Carol Arbuckle wanted to purchase the property and build a home. On September 14, 2000, the Arbuckles’ attorney, Robert Plummer, wrote a letter to Franklin as a trustee of the Franklin Educational Trust with an offer from the Arbuckles to buy the property at $2,500 per 12acre. The offer was accepted in January 2001. The letter did not mention anything about the minerals. During the examination of title, Attorney Plummer raised questions about whether the Trust was properly executed and thus, whether the Trust could own property. Plummer wrote to the attorney for the Trust, Jerold Knoll, on March 23, 2001, “(that the) trust was signed by George S. Franklin, Jr. before a Notary Public on April 17, 2000 (in Florida) and Wendy Stuart before a Notary Public on April 11, 2000 (in Massachusetts). The problem is that there were no witnesses to the signatures of George S. Franklin or Wendy Stuart ... I am convinced that an inter vivos trust which is not executed in accordance with the required form is not a valid trust under Louisiana law and therefore cannot own real estate.”

To clear up any questions about the Trust, attorney Plummer drafted an Adoption and Ratification of the Trust as well as a cash sale deed. These documents were given to the Trust’s attorney as well as Franklin and Ms. Stuart. On June 18 and July 3, 2001, Ms. Stuart and Franklin executed, as an authentic act, the Adoption and Ratification of the Trust, which was recorded on October 9, 2001. At the same times, the parties executed a cash sale deed (“the Arbuckle Deed”) conveying the Trust’s interest in the property. Again, all of these instruments were signed separately in Massachusetts and Florida.

The Arbuekle deed consists of three pages, the first two being relevant to this dispute. On the first page, Franklin and Ms. Stuart appeared |sas trustees of the Trust and conveyed the Trust’s ownership in the property to the Arbuckles. This page included a disclaimer that the transfer was “subject to any and all prior recorded subdivision restrictions, rights-of-way, easements, leases, and mineral reservations.” On the second page of the deed, Franklin appeared in an individual capacity. The deed states that he “herein quitclaims, conveys, and delivers unto Vendees all interest he may have in and to the above described property.”

The parties agree that, at the time of the sale in 2001, the mineral rights were not specifically discussed in the negotiations. This was before the development of the Haynesville Shale. In 2006, there was increased interest in minerals in DeSoto Parish. Arbuekle became concerned over possible drilling operations on the property. Arbuekle contacted attorney Plum-mer, who reviewed the Arbuekle Deed and concluded that Franklin still held a reservation on the mineral rights. Now, in his deposition, attached to the motions for summary judgment, Plummer stated that at that time he reviewed only the first page of the deed which contained the “subject to” language. Plummer then contacted Franklin, through counsel, Jerold Knoll, and proposed an amendment to the Ar-buckle Deed whereby Franklin would agree to prohibit drilling operations on the surface of the property. Franklin agreed; however, the amendment was never executed due to acrimonious issues between Franklin and Ms. Stuart.

In 2008, the Haynesville Shale was in play. On April 4, 2008, the Arbuckles entered into a mineral lease with Camterra Resource Partners, Inc. (“Camterra”), recorded on April 10, 2008. On June 1, 2008, Camterra |4assigned the lease to Petro-hawk Properties, L.P. (“Petrohawk”). Thereafter, on July 21, 2008, Franklin transferred the property’s mineral rights to his current wife, Claudia Franklin, through an inter vivos donation.

On January 26, 2009, Claudia Franklin filed suit against defendants, seeking a declaratory judgment that she was owner of the mineral rights. She also asked the court to issue an injunction against mineral operations and to declare the mineral lease between the Arbuckles and Camterra null. Defendants individually filed motions for summary judgment against Claudia Franklin.

While the motions for summary judgment on Claudia Franklin’s claims were pending, Franklin intervened in the suit, alleging that the parties’ original intent was that he reserve his mineral interests in the property and that the Arbuekle Deed should be so interpreted. Alternatively, he sought reformation or rescission of the deed based on error. On February 28, 2012, the trial court granted the motions for summary judgment as to Claudia Franklin’s claim, holding that the Arbuekle Deed clearly and unambiguously transferred both the surface and the mineral rights to the Arbuckles.

On March 9, Claudia Franklin filed a motion for a new trial from the February 28 judgment. The trial court granted the motion on April 16, 2012, “solely for the sake of judicial economy.” Defendants then filed motions for summary judgment against the claims of Franklin. On July 18, 2012, the trial court granted all the motions for summary judgment against plaintiffs.

_J^Discussion

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A genuine issue of material fact is one as to which reasonable persons could disagree. Argonaut Great Cent. Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.06/03/09), 13 So.3d 1209, writ denied, 09-1491 (La.10/02/09), 18 So.3d 122.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Argonaut Great Cent. Ins. Co., supra. Summary judgments are favored under Louisiana law; however, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and doubt must be resolved in the opponent’s favor. La. C.C.P. art. 966(A)(2); Argonaut Great Cent. Ins. Co., supra.

Ambiguity of the Arbuckle Deed

The determination of whether the language of a contract is clear or ambiguous is a question of law. Stephenson v. Petrohawk Properties, L.P., 45,296 (La.App.2d Cir.06/02/10), 37 So.3d 1145. Summary judgments are appropriate for questions of law.

Regarding the interpretation of deeds this court has held that:

The cardinal rule to be followed in construing deeds, uncertain because of ambiguity, is to ascertain the intention of the parties from the entire language of the deed. In the interpretation of deeds, the intentions of the parties must be gathered from an inspection of the | ^instrument itself, without the aid of extrinsic evidence, if their intentions can be thus ascertained. If the description is so ambiguous as to leave doubt as to the parties’ intent, the court may resort to extrinsic evidence as an aid in construction.

Dogal v. Pickett, 628 So.2d 184, 187 (La.App. 2d Cir.1993).

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. Where the words of a contract are clear, explicit and lead to no absurd consequences, the meaning and intent of the parties must be sought within the four corners of the instrument and cannot be explained or contradicted by parole evidence. Horton v. Mobley, 578 So.2d 977 (La.App. 2d Cir. 1991), writ denied, 582 So.2d 1310 (La.1991); see also, La. C.C. arts. 1848 and 2046.

A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective. La. C.C. art. 2049. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

Quitclaim is a word of art with a defined legal meaning. The Civil Code explains that what is called quitclaim at common law is an assignment of rights without warranty in the civil law. La. C.C. art. 2502, Comment(c). A quitclaim deed is one which purports to convey, and is understood to convey, nothing more than the interest or estate in the property described of which the grantor is seized or possessed, if any, at the time, rather than the property itself. Waterman v. Tidewater Assoc. Oil Co., 213 La. 588, 35 So.2d 225 (1947). The Supreme Court of Louisiana has held that the title to real property may be as effectually transferred by quitclaim as by any other form |7of conveyance. Id. But such a deed conveys only such title or interest that the grantor had at the time it is given and excludes any implication that he has any title or interest. Id.

Further, the seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him. La. C.C. art. 2474. In deeds, where the language making an exception or reservation is doubtful, it must construed most favorably to the grantee. Doyal, supra.

The provisions in the Arbuckle deed are not inconsistent or ambiguous. The trustees of the Educational Trust transferred what the Trust owned subject to any recorded mineral reservations. Franklin and Ms. Stuart signed as trustees. In the next section of the deed Franklin appeared in his individual capacity. The deed states that he “quitclaims, conveys and delivers all interest he may have in and to the above described property.”

Plaintiffs attached the affidavits of Franklin and his attorney Jerold Knoll stating that the deed left in place Franklin’s prior mineral reservation and that the quitclaim provision was necessary merely to clear up any problems about whether the Trust could own property. This is extrinsic evidence and where the words of a contract are clear, explicit and lead to no absurd consequences, the meaning and intent of the parties must be sought within the four corners of the instrument and cannot be explained or contradicted by parole evidence. Horton, supra.

Error

La. C.C. Art. 1848 provides that:

^Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement.

Though the trial court and the parties reference the concepts of mutual error and unilateral error, this court has recently observed that “our civilian provisions on ‘error’ do not utilize the terms ‘unilateral error’ or ‘mutual error,’ and nowhere in the Civil Code is any distinction between the two expressly addressed.” Peironnet v. Matador Resources Co., 47,190 (La.App.2d Cir.08/01/12), 103 So.3d 445, writs granted, 12-2292, 12-2377 (La.01/11/13), 106 So.3d 541, 542.

Consent may be vitiated by error, fraud or duress. La. C.C. art. 1948. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949.

Error may concern a cause when it bears on the nature of the contract, or the thing that is the contractual object or a substantial quality of that thing, or the person or the qualities of the other party, or the law, or any other circumstance that the parties regarded, or should in good faith have regarded, as a cause of the obligation. La. C.C. art. 1950.

As the supreme court in Reynaud v. Bullock, 195 La. 86, 196 So. 29, 34 (La.1940), stated:

It is an established rule of law in our jurisprudence that “Either party is always permitted, in a suit between the parties to a contract, to correct any error in the instrument purporting to evidence the contract, so as to make it express truly and correctly the intention of the parties,” provided the rights of |flthird parties have not intervened. The error or mistake must be mutual. The burden is on the one seeking the reformation to prove the error and he must carry the burden by clear, and the strongest possible, proof. (Citations omitted).

In the case sub judice, Attorney Plum-mer on behalf of the Arbuckles determined that the Trust owned the surface of the property the Arbuckles wanted to buy. Obviously, he also found in the deed to the Trust that Franklin reserved ownership of the minerals, that is, a mineral servitude. Attorney Plummer wrote to Franklin as a Trustee about the purchase of the Trust’s property. Plummer asked for a copy of the Trust’s instrument. He was given a copy, and he concluded there was a problem in its execution and that the Trust could not own property. Thus, Plummer drafted documents to cure this problem as well as a deed transferring the property. Everything Plummer did was to correct the Trust’s problem including having Franklin as the owner who transferred the property to the Trust to also quitclaim any interest he may have to the property as a safeguard. As to the mineral reservation, a cash sale would have been proper because Plummer knew that Franklin owned the mineral servitude. Several years thereafter, Plummer contacted Franklin to obtain an amendment to the deed which recognized Franklin’s ownership of a mineral servitude and agreement to prohibit drilling on the property.

Both Knoll and Franklin state in affidavits that Franklin’s intent was to keep his mineral servitude. Plummer’s acts are somewhat confusing. Certainly there are material issues of facts in this respect.

| mHowever, La. C.C. Art 1952 states that:

A party who obtains rescission on grounds of his own error is liable for the loss thereby sustained by the other party unless the latter knew or should have known of the error.
The court may refuse rescission when the effective protection of the other party’s interest requires that the contract be upheld. In that case, a reasonable compensation for the loss he has sustained may be granted to the party to whom rescission is refused.

Under the Revision Comments the following is discussed:

(d) In determining whether to grant rescission or, when rescission is granted, whether to allow any recovery to the party not in error, the court may consider whether the error was excusable or inexcusable, a distinction received by modern civilian doctrine. See 6 Planiol et Ripert, Traité pratique de droit civil frangais 227-229 (2nd ed. Esmein 1952); Litvinoff, “ ‘Error’ in the Civil Law,” in Essays on the Civil Law of Obligations 222, 226-269 (Dainow ed.1969); Ghestin, La notion d’erreur dans le droit positif actuel 146-165 (1968). Louisiana courts have granted relief when error has been found excusable (see Boehmer Sales Agency v. Russo, 99 So.2d 475 (La.App.Orl.Cir.1958)) and refused it when error has been found inexcusable (see Watson v. The Planters’ Bank of Tennessee, 22 La.Ann. 14 (1870)). The court may also consider whether the other party has changed his position and the importance of such a change. In this context, Louisiana courts have said that in case of doubt as to error in the motive of one of the parties courts will lean heavily in favor of one seeking to avoid loss and against one seeking to obtain a gain. See Dorvin-Huddleston Developments, Inc. v. Connolly, 285 So.2d 359 (La.App. 4th Cir.1973), reversed on other grounds 298 So.2d 734 (La.1974), on remand 320 So.2d 253 (La.App. 4th Cir.1975).

In Scott v. Bank of Coushatta, 512 So.2d 356 (La.1987), the court held that the contractual negligence defense was acknowledged as early as 1820 in the case of Wikoff v. Townsend, 7 Mart, (o.s.) 451 (La.1820). In Wikqff, the court refused to grant rescission, stating:

We do not think that this is an error which vitiates the contract. The defendants understood they were purchasing a space of two hundred feet in front; they knew, or at least must be supposed to have known, what extent that was. If they wanted to satisfy themselves on that score, they might have had it measured; but, if relying on their own judgment they made any mistake, as to the real extent of the two hundred feet, they cannot plead such a mistake as an excuse.

7 Mart, (o.s.) at 452-53.

Other Louisiana cases have rejected the defense of error where the complaining party, through education or experience, had the knowledge or expertise to easily rectify or discover the error complained of. See, e.g., Swearingen v. Maynard, 9 So.2d 272 (La.App. 2d Cir.1942) (businessman); Tiblier v. Family Real Estate Inc., 195 So.2d 432 (La.App. 4th Cir.1967) (dentist). In Scoggin v. Bagley, 368 So.2d 763, 767 (La.App. 2d Cir.1979), the court found that “[t]he plaintiff is an oil and gas man of some 30 years experience,” and based on that, “plaintiffs unilateral error as to the principal cause cannot serve to invalidate the top lease.”

In the case before this court, Franklin was experienced concerning the reservation of minerals. He admitted to having made other transfers wherein he reserved the minerals. Further, his attorney admitted to examining the deed. Both should have recognized that Franklin was transferring any interest he had which would include his mineral interest.

As to Camterra and Petrohawk, La. C.C. Art. 3342 applies. La. C.C. Art. 3342 provides that:

A party to a recorded instrument may not contradict the terms of the instrument or statements of fact it contains to the prejudice of a third person who after its recordation acquires an interest in or over the immovable to which the instrument relates.

Having found that the Arbuckles deed not to be ambiguous, the principles of recordation protect third parties acquiring an interest in the property.

112 Conclusion

For the reasons set forth above, the judgment of the trial court is affirmed. Costs of appeal are assessed equally against appellants and appellees.

AFFIRMED.

STEWART, J., dissents with written reasons.

STEWART, J.,

dissenting.

It Upon review of the record, I respectfully disagree with the majority opinion affirming the trial court’s granting of the defendants’ motions for summary judgment. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A genuine issue of material fact is one as to which reasonable persons could disagree. Argonaut Great Cent. Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.06/03/09), 13 So.3d 1209, writ denied, 09-1491 (La.10/02/09), 18 So.3d 122.

Moreover, summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 970 So.2d 1002; Hooker v. Wal-Mart Stores, Inc., 38,350 (La.App.2d Cir.4/07/04), 870 So.2d 1131, writ denied, 2004-1420 (La.9/24/04), 882 So.2d 1142. One reason is that these subjective facts call for credibility evaluations and the weighing of testimony. Hooker, supra; Oaks v. Dupuy, 32,070 (La.App.2d Cir.8/18/99), 740 So.2d 263, writ not considered, 99-2729 (La.11/24/99), 750 So.2d 993. Furthermore, the circumstantial evidence usually necessary for proof of motive or intent requires the trier-of-fact to choose from competing inferences, a task not appropriate for a summary judgment ruling. Hooker, supra.

In the present case, genuine issues of material fact remain as to whether the parties intended to transfer the mineral rights. First, the |2Arbuckle Deed appears to be ambiguous. A contract is ambiguous when either: (1) it lacks a provision bearing on an issue, (2) the terms of the contract are susceptible to more than one interpretation, (3) there is uncertainty or ambiguity as to its provisions, or (4) the intent of the parties cannot be ascertained from the language employed. Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087 (La.1981).

Here, uncertainty or ambiguity results from the first page “subject to” language and the second page “quitclaim” language of the deed. The former purports to be subject to prior mineral reservations, while the latter does not mention minerals or mineral reservations. As such, the clauses are mutually inconsistent, or, at the least, confusing.

In addition, Plummer’s statements are likewise inconsistent and confusing. In 2006, he concluded that Franklin had reserved mineral rights to the property in question, whereas, at his deposition in 2011, Plummer claimed to have only reviewed the first page of the deed. Plum-mer’s alleged failure to review the second page of the deed containing the quitclaim language resulted in his request for an amendment of the contract, though the amendment was never executed. It is also possible that Plummer did review the second page of the deed but did not believe it transferred Franklin’s mineral rights, as mineral rights were never discussed in negotiations.

The majority acknowledges that the proposed amendment of the contract recognized Franklin’s ownership of the mineral rights and agreement to prohibit drilling on the property. Furthermore, Plummer’s initial concern at the time of the Arbuckle Deed stemmed from whether the ptrust conveyance complied with Louisiana formality requirements, not whether Franklin intended to transfer his mineral rights. This inconsistency between Plummer’s actions preceding this suit and his deposition warrants a credibility determination that cannot be made on summary judgment.

Second, there is error as to the unintentional transfer of mineral rights. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949. Error may concern a cause when it bears on the nature of the contract, or the thing that is the contractual object or a substantial quality of that thing, or the person or the qualities of the other party, or the law, or any other circumstance that the parties regarded, or should in good faith have regarded, as a cause of the obligation. La. C.C. art. 1950.

Cause is the reason why a party obligates himself. La. C.C. 1967. Here, Franklin’s reason for obligating himself was to confirm the conveyance of the land held by the trust. Both parties knew or should have known of this principal cause because Plummer’s correspondence with Franklin raised issues concerning whether the trust was properly conveyed. This constituted a mutual error.

In cases of mutual error, the error might be said to consist of a wrong belief shared by both parties. Peironnet v. Matador, 47,190 (La.App.2d Cir.8/1/12), 103 So.3d 445. With such mutual mistake, the cause of each of the reciprocal obligations of the parties is in error and the contract is a nullity. Id. Here, Franklin and his attorney were under the impression that the quitclaim language sufficed to reserve the mineral rights as well as clear |4up ambiguity about whether the trust owned the land. Arbuckle stated in his deposition that mineral reservations were never mentioned in negotiations and his conduct following the sale demonstrates he believed Franklin still owned the minerals. It was only after Arbuckle sought to lease the minerals that he claimed he intended to purchase “whatever they owned” in the original transaction. However, this negates Arbuckle’s reasoning for buying the property, that being to build a house.

In the alternative, genuine issues of material fact exist with respect to unilateral error. Error can result in the annulment of a contract, or its partial rescission in a reformation action, when the consent of either one or both of the parties is vitiated by mistake. La. C.C. art. 1949. Here, the error is a result of the ambiguous language in the Arbuckle Deed. As mentioned above, Franklin and his attorney believed the language on the second page of the deed sufficed to reserve the mineral rights, not realizing the quitclaim language was insufficient. Again, the mineral rights were never discussed in negotiations and as such, Franklin’s reliance on the conveyance of the trust resulted in error.

Testimonial or other evidence may, in the interest of justice, be admitted to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement. La. C.C. art. 1848. Here, the allegations of the lack of discussion of mineral rights in negotiations, the deposition testimony and the correspondence between the parties all suggest that Franklin intended to preserve his mineral reservations, not transfer them with the trust property.

| ^Moreover, the defendants’ reliance on Scoggin v. Bagley, 368 So.2d 763, (La.App. 2d Cir.1979) in support of Franklin’s experience with mineral reservations, raising the defense of contractual negligence, is improper. The confusion lies with the quitclaim language, not Franklin’s experience with mineral reservations.

The burden, here, only requires that the defendants should have known plaintiffs cause or reason. Peironnet, supra. Thus, the above reasons preclude summary judgment. Therefore, I dissent.

ON REHEARING

Before BROWN, C.J., STEWART, LOLLEY, MOORE & PITMAN, JJ.

PITMAN, J.

|,In the original opinion, this Court affirmed the trial court’s judgment granting motions for summary judgment in favor of Defendants, Rodney Arbuckle and Carol Arbuckle (land purchasers), Camterra Resources Partners, Inc., and Petrohawk Properties, L.P., and against Plaintiff, Claudia Franklin, and Intervener, George Franklin. This Court originally found that a deed of the surface rights signed by Plaintiff in Intervention, George Franklin as Trustee of the Franklin Educational Trust, coupled with a quitclaim deed signed by Franklin in his individual capacity, conveyed to the Arbuckles mineral interests he had previously reserved. The Franklins applied for rehearing, which was granted. Upon further consideration, we reverse and remand.

On appeal, summary judgments are reviewed de novo; thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate, i.e. whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002; Hooker v. Wal-Mart Stores, Inc., 38,350 (La.App.2d Cir.4/07/04), 870 So.2d 1131, writ denied, 04-1420 (La.9/24/04), 882 So.2d 1142. One reason is that these subjective facts call for credibility evaluations and the weighing of testimony. Hooker, supra; Oaks v. Dupuy, 32,070 (La.App.2d Cir.8/18/99), 740 So.2d 263. Furthermore, the circumstantial evidence usually necessary for proof of motive or intent requires the trier of fact to choose |2from competing inferences, a task not appropriate for a summary judgment ruling. Hooker, supra.

Courts are bound to give legal effect to all written contracts according to the true intent of the parties, and this intent is to be determined by the words of the contract when these are clear, explicit and lead to no absurd consequences. La. C.C. art. 2046. Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include. La. C.C. art. 2051. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract and of other contracts of a like nature between the same parties. La. C.C. art. 2053.

Parol or extrinsic evidence is generally inadmissible to vary the terms of a written contract unless the written expression of the common intention of the parties is ambiguous. A contract is considered ambiguous on the issue of intent, and parol evidence is admissible, when either it lacks a provision on that issue, the terms of the written contract are susceptible to more than one interpretation, there is uncertainty or ambiguity as to its provisions or the intent of the parties cannot be ascertained from the language employed. Whether a contract is ambiguous, for purposes of determining whether parol evidence is admissible, is a question of law. Hendrick v. Patterson, 47,668 (La.App.2d Cir.1/16/13), 109 So.3d 475, writ denied, 13-0670 (La.4/26/13), 112 So.3d 849.

The Arbuckle Deed is ambiguous. Uncertainty or ambiguity results from the first page “subject to” language and the second page “quitclaim” language of the deed. The former purports to be subject to the prior |srecorded mineral reservation, while the latter does not mention minerals or mineral reservations. As such, the clauses are mutually inconsistent, or, at the least, confusing.

According to the evidence present in the record, there was no discussion in negotiations between the parties about the conveyance of mineral rights, nor was any explanation given as to why Mr. Franklin was asked to execute the Arbuckle Deed in his individual capacity. However, the lack of negotiations about the mineral rights does not imply that they were to be conveyed. No one raised any question about Franklin’s mineral ownership. In fact, the initial concern dealt only with whether the trust conveyance complied with Louisiana formality requirements after the Arbuck-les’ attorney reviewed only the first page of the deed.

The evidence shows that there was confusion with the quitclaim language regarding the effect of the Arbuckle Deed, which continued to exist as late as 2006, coincidentally, when there was an increased interest in minerals per the development of the Haynesville Shale. In 2006, the Ar-buckles’ attorney contacted Mr. Franklin to express Mr. Arbuckle’s worries about the possible disruption of use of the surface property if Mr. Franklin leased the mineral rights. The implication of this communication was that, even at that time, the Arbuckles believed Mr. Franklin owned the mineral rights to the property.

Clearly, genuine issues of material fact remain regarding proof of motive or intent in the contract, which requires the trier of fact to choose from competing inferences, and the genuine issues of material fact make this case inappropriate for summary judgment.

\ «CONCLUSION

For the foregoing reasons, rehearing is granted in favor of Plaintiff, Claudia Simone Franklin, and Intervener, George S. Franklin, Jr., and against Defendants, Rodney and Carol Arbuckle, Camterra Resources Partners, Inc. and Petrohawk Properties, L.P. The judgment of the trial court is hereby reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion. Costs are assessed against Defendants, Rodney and Carol Arbuckle, Camterra Resources Partners, Inc. and Petrohawk Properties, L.P.

REVERSED AND REMANDED.

BROWN, C.J., dissents with written reasons.

LOLLEY, J., dissents for the reasons assigned by BROWN, C.J.

BROWN, Chief Judge,

dissents on rehearing.

|]On rehearing, the majority has with sleight of hand changed the dispositive analysis of this case from one of “cause or a vice of consent” to “ambiguity.” They have also ignored the recent unanimous Louisiana Supreme Court’s decision of Peironnet v. Matador Resources Co., 12-2292 (La.06/28/13), — So.3d -, 2013 WL 3752474.

The majority now states that “[t]he Ar-buckle Deed is ambiguous” in that the two “clauses are mutually inconsistent, or, at least, confusing.” In fact, the two clauses transferring property are clearly consistent and definitive. The Trust transferred what it owned to the Arbuckles. All the parties and their attorneys knew that Franklin had previously transferred the property to the Trust with a mineral reservation. The Trust did not own the minerals. Franklin as one of the two trustees signed the deed with the “subject to” language. Thereafter, the holder of the mineral reservation, Franklin, signed a second time in his personal capacity specifically transferring his mineral interest. There is nothing inconsistent or unclear about this.

The Arbuckle Deed was drafted to transfer ownership, including the minerals, to the Arbuckles for the purpose of building a home. The parties and them attorneys stated that they read the contents of the writing to which they all affixed their signatures. Neither Franklin nor his attorney questioned, sought any clarification or discussed the clear language that transferred his mineral rights. The Arbuckles built their home on the land and now, some seven years later with the discovery of the Haynesville Shale, Franklin claims that he did not intend to transfer his mineral rights. The majority writes that Franklin’s alleged intent to keep the minerals makes the deed ambiguous and confusing. This is fallacious reasoning. While | gFranklin’s motive or cause may be questionable, the clarity of the deed is not.

I further note that before this action was lodged, the property was leased from the Arbuckles, and a producing well was drilled in the unit. Agents for Camterra and Petrohawk found the deed to be clear as to the ownership of the land and minerals. La. C.C. art. 3342 provides that “[A] party to a recorded instrument may not contradict the terms of the instrument or statements of fact it contains to the prejudice of a third person who after its recor-dation acquires an interest in or over the immovable to which the instrument relates.” By finding the deed to be ambiguous, the majority has now prejudiced these oil and gas companies.

A transfer of immovable property must be made by authentic act or by act under private signature. La. C.C. art. 1839. A mineral right is an incorporeal immovable. La. R.S. 31:18. When the law requires a contract to be in written form, the contract may not be proved by testimony or by presumption, unless the written instrument has been destroyed, lost, or stolen. La. C.C. art. 1832. Generally, parol (testimonial) evidence is not admissible to contradict, vary or modify a written instrument. Notwithstanding, while “[testimonial or other evidence may not be admitted to negate or vary the contents of [a writing], ... in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent....” La. C.C. art. 1848; Harnischfeger Sale Corp. v. Sternberg Co., 179 La. 317, 327, 154 So. 10, 13 (1934).

Consent may be vitiated by error, fraud, or duress. La. C.C. art. 1948. However, error vitiates consent only when it concerns a cause without which |3the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949.

A similar case out of this court was Peironnet v. Matador Resources Co., 47,190 (La.App.2d Cir.08/01/12), 103 So.3d 445. This case, written by Judge Stewart, was reversed by an unanimous supreme court. See Peironnet v. Matador Resources Co., 12-2292 (La.06/28/13), — So.3d -, 2013 WL 3752474.

Peironnet arose out of a one and one-half year extension of a three-year primary term oil and gas lease covering 1805.34 acres in the southern part of Cad-do Parish. Plaintiffs sued the lessee, Matador Resources Company, to rescind or reform the extension agreement making it applicable only to 168.95 nonproducing acres. The supreme court concluded that plaintiffs were precluded by law from advancing their claim of unilateral error given their inexcusable failure to read and question the unambiguous extension agreements and that summary judgment on this issue was appropriate as a matter of law. The court reversed the judgment of the court of appeal, finding:

In the present case, plaintiffs alleged their agent, Moore, was mistaken on the cause of the agreement — in essence he did not understand the Extension Agreement extended the entirety of the Lease — and the defendants knew or should have known of his misunderstanding. In response, defendants raised the defense of contractual negligence, demonstrating through affidavits and documentary evidence: (1) the plaintiffs could show no excuse for failing to read and understand the clear terms of the Extension Agreement, which was written “in plain English, without technical language or terms of art,” explicitly extending the primary term of the Lease from three to four and one-half years; (2) plaintiffs’ agents, particularly Moore and Hand, were self-proclaimed experts in dealing with oil and gas matters, including oil and gas leases; and (3) the original lease between the parties was executed on Regions’s own lease form band undisput-ably extended to all depths during the primary term.
Applying the modern civilian concept of inexcusable error as advanced in our contractual negligence defense to these undisputed facts, we find, as did the District Court, reasonable persons could not disagree the alleged error on the part of the plaintiffs’ agents in this case was easily detectable and could have been rectified by a minimal amount of care, i. e., by simply reading the document and/or by requesting simple changes to the written offer before acceptance. See Scott, 512 So.2d at 362-63; see also Tweedel v. Brasseaux, 433 So.2d 133, 137 (La.1983)(“The presumption is that parties are aware of the contents of writings to which they have affixed their signatures ... The burden of proof is upon them to establish with reasonable certainty that they have been deceived.... If a party can read, it behooves him to examine an instrument before signing it; and if he cannot read, it behooves him to have the instrument read to him and listen attentatively whilst this is being done.”). Moreover, it is undisputable the agents of the complaining party, Regions’s petroleum landmen, were both “through education and experience in a position which renders [their] claim of error particularly difficult to rationalize, accept, or condone.” Scott, 512 So.2d at 362-63.
It follows, therefore, the plaintiffs’ failure to question the extension, to seek clarification of the acreage covered, or to even discuss the Deep Rights demonstrates an inexcusable lack of “elementary prudence” or simple diligence that now precludes their rescission of the agreement.
In light of these undisputed facts, we find the plaintiffs were precluded by law from advancing a unilateral theory of error due to their own inexcusable error, and defendants were entitled to summary judgment as a matter of law. (Emphasis added).

Peironnet, No. 2012-C-2377, — So.3d at -, 2013 WL 3752474, at *18-20 (La.06/28/13).

This is exactly the factual scenario in the case at hand. The language in the Ar-buckle Deed transferred Franklin’s mineral interest to the Arbuckles. Franklin had experience and knowledge concerning mineral rights, as he had reserved the minerals on a number of occasions, including |fiwhen he transferred the property at issue to the Educational Trust. Franklin’s attorney, through education and experience, was in a position to understand the effect of the language in the deed. As the supreme court did in Peironnet, supra, I find the claim now of error “particularly difficult to rationalize, accept, or condone.”

      . Franklin also included in the transfer another tract in Claiborne Parish which is not an issue in the present suit.

      . According to Franklin, their divorce was acrimonious and the two only communicate through writing or counsel.


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge. JOHNSON, J., LILJEBERG, J.,

license: Public Domain

text:
    STATE of Louisiana v. Matthew JOHN.
    No. 2013-K-195.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 9, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Matthew Caplan, Assistant District Attorneys, Gretna, LA, for Relator.

      Donald D. Cleveland, Attorney at Law, Lafayette, LA, for Respondent.
   STEPHEN J. WINDHORST, Judge.

hWRIT GRANTED IN PART; DENIED IN PART

In this writ application, the State challenges the trial court’s ruling granting defendant’s motion to suppress statement and evidence as it pertains to the charge of possession of an unregistered firearm. For the reasons that follow, we grant the State’s application in part and deny the application in part.

DefendanVrespondent, Matthew John, has been charged with operating a motor vehicle while intoxicated, in violation of La. R.S, 14:98, and possession of an unregistered firearm, in violation of La. R.S. 40:1785. Defendant filed a Motion for Preliminary Examination, and a Motion;o Suppress Evidence and Statement. After a hearing, the trial court found probable cause for the offense of operating a motor vehicle while intoxicated, and granted defendant’s motion to suppress evidence and statement concerning the offense of possession of an unregistered firearm.

Hearing of Motions to Suppress

The following facts were adduced at the hearing on the motion to suppress:

Deputy Cody Soileau, employed by the Louisiana Department of Wildlife and Fisheries at the time of the alleged offenses, testified that he observed defendant’s vehicle stuck in the sand on Elmer’s Island Beach, so he and his partner, Agent Doug Danna, approached to render aid As he and Agent Danna stopped to assist defendant, he noticed defendant’s speech was slurred, he had bloodshot and watery eyes, and smelled of alcohol. Deputy Soi-leau asked defendant to walk to the front of his state vehicle at which time he observed that | ¡¡defendant was “stumbling and had unsure balance.” Suspecting defendant to be under the influence, Deputy Soileau administered a horizontal gaze nystagmus (“HGN”) test. According to Deputy Soileau’s assessment, the results of the test indicated a “lack of smooth pursuit, [and] ... maxim am deviation in both eyes, onset prior to 45 and also vertical nystagmus.” At some point, defendant advised Deputy Soileau that he had been drinking. Deputy Soileau testified that defendant had not been advised of his Miranda rights prior to making the statement, and was not warned until after he was transported to the Grand Isle Police Department for chemical testing since defendant refused to perform any more field sobriety tests.

Deputy Soileau testified that in his experience, a DWI suspect does not have to be advised of his Miranda rights until an officer starts asking him “test questions” from the DWI rights form.

While on the scene, Deputy Soileau testified that Agent Danna asked defendant if he had any weapons in his vehicle, to which defendant responded that he had a sawed-off shotgun in his backseat. The gun was located and seized. Deputy Soi-leau testified that he did not recall when defendant was placed in handcuffs, but believed it was sometime after they seized the weapon. Defendant was then transported back to the police department where he was advised of his Miranda rights and his rights related to chemical testing. Defendant acknowledged that he understood his rights, and refused to submit to a breathalyzer test. Defendant was later transported to the Jefferson Parish Correctional Center.

On cross-examination, Deputy Soileau testified that he and Agent Danna were both armed and standing with defendant in front of their state vehicle at the time they conducted the HGN test. Specifically, Deputy Soileau testified that they were standing approximately 20 to 25 feet away from defendant’s vehicle. Deputy Soileau testified that, at the time they were performing the test, defendant was | ^detained and not free to leave. Deputy Soileau admitted that defendant was under arrest but that defendant was not advised of his Miranda rights prior to Agent Danna questioning him.

Deputy Soileau admitted that after defendant was arrested, Agent Danna asked him if he had any weapons in his vehicle, and that defendant advised them that he had a sawed-off shotgun in his backseat. Deputy Soileau further testified that after defendant walked to the front of their state vehicle to perform the HGN test, defendant never again had access to his own vehicle which was parked approximately 20 to 25 feet away.

On re-direct examination, Deputy Soi-leau testified that the purpose of asking a suspect whether they have any weapons in their vehicle is for officer safety.

Suppression of the Statement

In this writ application, the State does not dispute the finding that defendant was not free to leave and in custody at the time Agent Danna asked defendant whether there were any weapons in his vehicle. Rather, the State argues that Miranda only prohibits the admission of statements which are the product of a custodial interrogation. And in this instance, the State contends that the question asked by Agent Danna was not an “interrogation” because it was not a question that the officers should have known was likely to elicit an incriminating response. The State further submits that the question about weapons in the vehicle concerned an activity that is not illegal and was unrelated to the crime under investigation (DWI).

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he knowingly and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, | inducement or promises. La. R.S. 15:451; State v. Mollette, 08-138 (La.App. 5 Cir. 11/25/08), 2 So.3d 461, 467, writ denied, 09-0155 (La.10/16/09), 19 So.3d 472; State v. Franklin, 03-287 (La.App. 5 Cir. 9/16/03), 858 So.2d 68, 70, writ denied, 03-3062 (La.3/12/04), 869 So.2d 817. The police are required to explain Miranda’s special procedural safeguards to the suspect before initiating a custodial interrogation that deprives the suspect of his freedom of action. State v. Payne, 01-3196 (La.12/4/02), 833 So.2d 927, 934. A statement obtained from the defendant by direct or implied promises, or by the exertion of improper influence must be considered involuntary and, therefore, inadmissible. State v. Gregory, 05-628 (La.App. 5 Cir. 3/28/06), 927 So.2d 479, 483.

The special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. Rhode Island v. Innis, 446 U.S. 291, 800, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). “Interrogation,” as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself. Id. at 300-01, 100 S.Ct. 1682. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Id. An incriminating response, whether inculpatory or exculpatory, is that which the prosecution may seek to introduce at trial. Id. at 302, 100 S.Ct. 1682.

Here, Deputy Soileau admitted relator was under arrest at the time he was questioned. Furthermore, relator was “interrogated” within the meaning of Miranda when Agent Danna expressly questioned him about weapons in his vehicle, inviting an incriminating response from defendant. Defendant’s admission regarding the possession of a shotgun, which turned out to be unregistered, appears to have been obtained in violation of defendant’s right against self-incrimination. 1 ¡¿Furthermore, while Deputy Soileau testified that the purpose as asking a suspect whether they have any weapons in their vehicle is for officer safety, he also admitted that they were 20 to 25 feet away from the vehicle.

Thus, because defendant was not advised of his Miranda rights prior to express questioning that took place while defendant was in custody, and where officer safety was not at issue, we find that the trial court was correct in granting defendant’s motion to suppress statement.

Suppression of Miranda-tainted Evidence

The State also argues the trial court erred in suppressing the shotgun because the physical fruits of an “unwarned” statement are not subject to suppression, relying on United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004). In Patane, the Court held and reaffirmed that the failure to give a suspect the warnings prescribed by Miranda, does not require suppression of the physical fruits of a suspect’s unwarned but voluntary (uncoerced) statement.

The shotgun in this case was recovered in defendant’s vehicle as a direct result of defendant’s un-Mirandized statement. When a confession is held involuntary, the fruits of the tainted confession, in addition to the confession itself, must be excluded from a criminal proceeding. Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) However, in contrast to exclusion of fruits of an involuntary confession, the United States Supreme Court has taken the position that exclusion of the fruits of an unwarned, Miranda-tainted statement is not necessary, nor required, in all instances.

Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), noted a distinction between police conduct that directly infringed on a defendant’s right against compulsory self-incrimination and police conduct that violated only the prophylactic rules developed to protect that right. Concluding that the |fiexclusion of fruits of an unwarned statement need only occur when the rationale of deterrence of police misconduct would be served, the Court ruled that the testimony of a witness who was discovered through the unwarned, but uncoerced and voluntary interrogation was admissible.

In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) the Supreme Court reaffirmed its finding that a procedural Miranda violation differs from a Fourth Amendment seizure violation, and therefore the “fruit of the poisonous tree” doctrine is not applicable to Miranda warning violations.

Thereafter, in Patane, the Court found that federal constitutional law does not require the exclusion of physical evidence obtained by using information in a statement itself inadmissible because it was tainted by a violation of the Miranda requirements. The Patane opinion states that, unlike the Fourth Amendment’s bar on unreasonable searches, the self-incrimination clause is “self-executing,” meaning that those “those subjected to coercive police interrogations have an automatic protection from the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial.” Patane, 542 U.S. at 640, 124 S.Ct. 2620, citing Chavez v. Martinez, 538 U.S. 760, 769, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). “The exclusion of unwarned statements ... is a complete and sufficient remedy” for any perceived Miranda violation. Patane, 542 U.S. at 641-42, 124 S.Ct. 2620 (citing Chavez, 538 U.S. at 790, 123 S.Ct. 1994).

There is, therefore, a clear distinction between exclusions which are based on the Fourth and Fifth Amendment infractions. When a statement leads to acquisition of evidence, and the statement is unwarned, but uncoerced and voluntary, the statement itself is excluded but the evidentiary fruits are not. That is especially so in this case, where the statement was not only voluntary, but was in |7response to a question asked by police (whether there were any weapons in the truck) which was unrelated to the offense being investigated (DWI), and which the officers had no reason to believe was likely to evoke an incriminating response.

The development of jurisprudence clarifying and limiting the scope of Miranda commenced shortly thereafter with Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). On the issue before us, federal jurisprudence since Tucker in 1974 has consistently moved toward allowing admission of evidence obtained as a result of a Miranda-tainted, inadmissible statement, when the statement leading to that evidence is voluntary, uncoerced, and usually unintentional on the part of police, despite the statement itself being inadmissible.

United States v. Mendez, 27 F.3d 126 (5th Cir.1994), held that although the prophylactic rule of Miranda was violated, there was no constitutional violation where the officers’ tactics in interrogating the defendant were not coercive and, therefore, the nontestimonial evidence could not be suppressed. United States v. Barte, 868 F.2d 773, 774 (5th Cir.1989), cert. denied, 493 U.S. 995, 110 S.Ct. 547, 107 L.Ed.2d 548 (1989), held, “A mere violation of Miranda’s ‘prophylactic’ procedures does not trigger the fruit of the poisonous tree doctrine. The derivative evidence rule operates only when an actual constitutional violation occurs, as where a suspect confesses in response to coercion.” United States v. Bengivenga, 845 F.2d 593, 600 (5th Cir.1988), cert. denied, 488 U.S. 924, 109 S.Ct. 306, 102 L.Ed.2d 325 (1988), held, “A violation of Miranda rules, rules fashioned to secure the Fifth Amendment’s privilege during custodial interrogation, necessitates only the exclusion of testimonial evidence from the prosecution’s case in chief. The ... nontestimonial physical evidence ... would not be excludable even if they had been obtained in violation of Miranda.” United States v. Cherry, 794 F.2d 201, 208 (5th Cir.1986), cert. denied, 479 U.S. 1056, 107 S.Ct. 932, 93 L.Ed.2d 983 (1987), held that a Miranda violation did not result in a violation of the defendant’s Fifth | ¡Amendment right against self-incrimination where this statement was voluntary and, therefore, the murder weapon was not to be suppressed as “fruit” of the violation.

We therefore find that the trial court erred in finding that the gun seized from defendant’s car should be suppressed pursuant to the “fruit of the poisonous tree doctrine.”

Suppression of Evidence based on Fourth Amendment

In his opposition to the State’s writ application, defendant raises a Fourth Amendment issue, arguing that the seizure of the shotgun was not the sole result of his statement, and therefore, not necessarily “fruit of the poisonous tree.” Rather, defendant contends that the evidence was obtained from a separate improper and warrantless search of his vehicle without probable cause. However, the seizure of defendant’s shotgun from his vehicle appears to have been a direct result of defendant’s un-Mirandized statement, despite defendant’s contention that the “fruit of the poisonous tree” doctrine is inapplicable and that the seizure of the shotgun was an independent occurrence.

Further, the weapons question is typically asked for officers’ safety. Even if the officers’ safety concern was only slight in this case, the officers had an interest in assuring that the truck, which was located on the teach in the sand, was made safe for and from others until it was removed. Thus, we find no unreasonable search and seizure.

Lastly, defendant asserts in his reply brief that his vehicle was towed and that the officers did not first comply with the procedure of La. R.S. 32:667, which would have allowed him to call someone to retrieve his vehicle. According to defendant, the failure of the officers to comply with La. R.S. 32:667 warrants |9suppression of the shotgun. However, these assertions by defendant show that the presence of the shotgun would have been “discovered” when the vehicle was towed pursuant to an inventory search of the vehicle, one of the narrow exceptions to the warrant requirement. Contrary to defendant’s assertions, a violation of La. R.S. 32:667 does not result in the suppression of evidence. Rather, La. R.S. 32:667(A)(4) provides that “[i]f a law enforcement officer violates the provisions of this paragraph [ie., refuses to allow the arrestee to call someone to retrieve his vehicle], his employing agency rather than the arrestee shall be responsible for the payment of any towing charges incurred.” Thus, the shotgun would inevitably have been discovered, and therefore its admission into evidence does not violate defendant’s Fourth Amendment rights against illegal search and seizure.

For the above discussed reasons, we grant the State’s writ application for writ in part, and rule that the trial court committed error in suppressing the shotgun seized from defendant’s truck. We deny the writ in part finding no error in the ruling suppression of the statement made by defendant.

JOHNSON, J., concurs with reasons.

LILJEBERG, J., dissents in part: concurs in part.

JOHNSON, J.,

concurs with reasons.

|TI agree with denying the State’s writ in part on the basis the trial court properly suppressed Defendant’s statement. I agree that Defendant was subject to a custodial interrogation without being advised of his Miranda rights, which necessitates the suppression of his statement. I also agree with granting the State’s writ in part on the basis the trial court erred in suppressing the gun found in Defendant’s car because the “fruit of the poisonous tree” doctrine is not applicable. However, I specifically disagree with that portion of the analysis under the hearing, “Suppression of Evidence based on Fourth Amendment.”

LILJEBERG, J.,

dissents in part: concurs in part.

hi respectfully dissent from the majority’s finding that defendant was in custodial interrogation, necessary to trigger a Miranda warning, at the time of questioning on the scene. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Rhode Island v. Innis, 446 U.S. 291 at 301-2, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The officer’s question was unrelated to the crime under investigation (DWI) and was not one that the officer should have known would elicit an incriminating response from defendant. Possession of a firearm in a vehicle is not a crime. Therefore, defendant was not under interrogation for purposes of Miranda, and the statement is admissible.

Moreover, the officer testified that defendant was not handcuffed at the time he was asked about weapons in his vehicle. As such, the seizure of the weapon for officer safety was proper and necessary to secure the vehicle for towing. I, therefore, concur in the result of the majority’s finding that the weapon is admissible.

Accordingly, I would grant the state’s writ application in its entirety.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The Miranda violation in Tucker occurred before Miranda was decided, however the defendant’s trial and conviction took place after, and therefore the United States Supreme Court found that Miranda was applicable.

      . In Elstad, the Court found that a defendant’s confession made after proper Miranda warnings and valid waiver of rights need not be suppressed merely because it followed an earlier voluntary but unwarned admission.

      . In Patane, the officer asked about a handgun after an incomplete recitation of Miranda rights. After questioning revealed its location, the officers retrieved the handgun later admitted into evidence.

      . It is uncertain whether the officers had the truck removed from the beach after the arrest. Because the State bore the burden of proof, we do not assume they did, and therefore conduct; there was no inventory search.

      . State v. Escoto, 09-2581 (La.7/6/10), 41 So.3d 1160, 1163.


author: WILLIAMS, J.

text:
    Patrick WILLIAMS, Plaintiff-Appellant v. PEERLESS INSURANCE COMPANY, Defendant-Appellee.
    No. 48,228-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.

      Vincent L. Bowers, New Orleans, for Appellant.
    George M. Snellings, IV, Monroe, for Appellee.
    Before BROWN, WILLIAMS and GARRETT, JJ.
   WILLIAMS, J.

h The plaintiff, Patrick Williams, appeals a grant of summary judgment in favor of the defendant, Peerless Insurance Company, the uninsured/underinsured motorist coverage carrier. The district court found that plaintiffs exclusive remedy for his injuries was under the Louisiana Workers’ Compensation Act and ordered plaintiff to return the amount of $31,804 previously tendered by defendant. Plaintiff further appeals the denial of his cross-motion for summary judgment with regard to the uninsured motorist policy limits. For the following reasons, we reverse, render and remand for further proceedings.

FACTS

On February 18, 2010, Patrick Williams was a passenger in a vehicle owned by his employer, M-N Utilities, Inc., and driven by a coworker. While returning to the employer’s shop from a job, the vehicle in which Williams was a passenger collided ■with a vehicle operated by James Wilkerson. As a result of the accident, Williams suffered injuries, including cervical disc herniations at C4-5 and C5-6. Wilkerson’s automobile liability insurer stipulated that Wilkerson was at fault in causing the accident and paid Williams its insurance policy limits of $15,000. Peerless Insurance Company (“Peerless”) had issued a policy of uninsured/underinsured motorist (“UM”) coverage for the vehicle in which Williams was a passenger. The Peerless UM policy provides insurance coverage for anyone occupying a covered vehicle with permission of the named insured, M-N Utilities, Inc.

Subsequently, the plaintiff, Patrick Williams, filed a petition for ^damages against the defendant, Peerless, seeking payments under the UM policy for medical costs and damages that exceeded the limits of the primary liability insurance coverage. After the lawsuit was filed, the defendant tendered $31,804 in unconditional good faith payments to the plaintiff. Defendant then filed a motion for summary judgment seeking dismissal of plaintiffs claims on the ground that workers’ compensation was his exclusive remedy for the injuries he sustained in an accident arising out of and in the course of his employment. In the alternative, defendant alleged that plaintiff could not recover under the UM policy because it excluded coverage that would directly or indirectly benefit any insurer under the workers’ compensation law. Defendant also sought reimbursement for the amount previously paid to plaintiff as an unconditional tender under the UM policy. The plaintiff filed a cross-motion for summary judgment alleging that he was entitled to the liability policy limits of $1 million, based on the lack of a valid UM coverage selection form.

In a written ruling, the district court found that the plaintiff was precluded from recovery under the UM policy because workers’ compensation was the exclusive remedy for plaintiffs work injuries and the UM policy excluded coverage for such injuries. The court rendered summary judgment in favor of the defendant, denied plaintiffs cross-motion for summary judgment and ordered plaintiff to pay $31,804 to reimburse Peerless for the amounts tendered. Plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the district court erred in granting summary | judgment in favor of the defendant on the grounds that workers’ compensation is plaintiffs sole remedy for any injuries sustained in the accident. Plaintiff argues that he is not limited to workers’ compensation benefits because defendant is legally hable to pay damages to plaintiff for injuries caused by an underinsured motorist.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Duncan v. USAA Ins. Co., 2006-363 (La.11/29/06), 950 So.2d 544; See also LSA-C.C.P. art. 966. Appellate courts review summary judgments de novo, while considering the record and all reasonable inferences drawn from the record in the light most favorable to the non-movant. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764; Austin v. Bundrick, 41,064 (La.App.2d Cir.6/30/06), 935 So.2d 836. Summary judgment is warranted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(C)(1).

The right of an employee to compensation benefits for injuries arising out of and in the course of employment shall be exclusive of all other rights, remedies and claims for damages as against his employer, or any principal, officer, director, stockholder, partner or employee of such employer. LSA-R.S. 23:1032. When an injury for which compensation is payable creates a legal liability to pay damages in some person, other than those against whom the employee’s rights are limited in Section 1032, the claim or payment of compensation shall not affect the worker’s right of action |4against such third person. LSA-R.S. 23:1101. An employer’s UM insurer is a third person legally liable to pay damages to an employee injured in a work-related automobile accident because the UM insurer is obligated both by law and the issuance of its policy to repair damage caused by an uninsured or underinsured motorist. Johnson v. Fireman’s Fund Ins. Co., 425 So.2d 224 (La.1982).

In the present case, it is undisputed that defendant issued a policy of UM coverage for the vehicle in which plaintiff was a passenger at the time of the accident. In support of its argument that plaintiff cannot seek damages from the employer or any insurer of the employer because his exclusive remedy is in workers’ compensation, defendant relies on Hill v. West American Ins. Co., 93-915 (La.App.3rd Cir.3/2/94), 635 So.2d 1165. However, the Hill case involved an employer’s liability insurer and did not address the issue of UM insurance coverage. Thus, the cited authority does not support the defendant’s position that plaintiff may not recover under the UM policy.

As stated above in Johnson, supra, the supreme court established that an employer’s UM insurer, such as the defendant, is a third person legally liable to pay the plaintiff damages for his injuries resulting from a work-related automobile accident caused by an underinsured driver. In such a situation, Sec. 1101 expressly provides that the claim or payment of workers’ compensation benefits shall not affect the plaintiffs right of action against such third person to recover damages for the injury. Consequently, the district court erred in granting summary judgment in favor of the | defendant on the basis that workers’ compensation was the plaintiffs exclusive remedy for his injuries.

Policy Exclusion

The plaintiff contends the district court erred in finding that the UM policy exclusion provision precluded coverage for his injuries. Plaintiff argues that the policy exclusion applies to reimbursement claims of compensation carriers and not to claims by injured employees. We agree.

As stated above, an employer’s UM insurer is a third person legally liable to pay damages to an employee injured in a work-related automobile accident. Johnson, supra. Any person having paid or having become obligated to pay workers’ compensation may bring suit against such third person to recover any amount which he has paid or becomes obligated to pay as compensation to an injured employee. LSA-R.S. 23:1101(B). Thus, the workers’ compensation insurer of the employer may file suit against the employer’s UM insurer for reimbursement of benefits paid to the injured employee. Travelers Ins. Co. v. Joseph, 95-0200 (La.6/30/95), 656 So.2d 1000; Kennedy v. Durden, 47,904 (La.App.2d Cir.4/10/13), 116 So.3d 12.

Parties are free to contract for any object that is lawful, possible and determined or determinable. LSA-C.C. art. 1971. Persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. LSA-C.C. art. 7. Thus, the Civil Code establishes the freedom to contract on all matters not forbidden by law. Travelers, supra. Although the law allows compensation insurers to obtain reimbursement of compensation benefits from third persons, no statute or policy consideration prohibits a RUM carrier from contracting to exclude liability for such compensation reimbursement. Travelers, supra; Kennedy, supra.

In the present case, the defendant’s UM policy includes an exclusion providing that coverage does not apply to the “direct or indirect benefit of any insurer or self-insurer under any workers’ compensation, disability benefits, or similar law.” As defendant points out, a UM policy exclusion with the same language was found to be valid in Travelers, supra. However, in the Travelers case, the issue was whether an employer’s UM policy exclusion may prevent a workers’ compensation insurer from recovering reimbursement of compensation benefits paid to an employee injured by an underinsured motorist. In Travelers, supra, the court determined that the exclusion barred a compensation carrier’s reimbursement claim against the UM insurer; the case did not involve a claim by an injured worker for damages under the UM policy.

We note that the exclusion language in the defendant’s policy expressly refers to “any insurer or self-insurer” and does not mention employees. Thus, the cited authority does not support the defendant’s assertion that this exclusion bars the plaintiffs claims under the UM policy. Nor has defendant shown that plaintiffs recovery of damages under the UM policy would benefit the compensation insurer, which would not be relieved of the obligation to pay workers’ compensation benefits to the plaintiff. Further, the UM policy language removes any benefit the compensation insurer would derive from plaintiffs recovery of damages by excluding reimbursement of compensation benefits paid. After considering the ^applicable law and the policy language, we conclude that the district court erred in finding that the defendant’s UM policy excludes coverage for plaintiffs injuries.

Unconditionally Tendered Payments

The plaintiff contends the district court erred in ordering him to reimburse the defendant for the good faith payments previously tendered. Plaintiff argues that reimbursement is not required because he is entitled to the amounts paid as an insured under the UM policy.

When an insured is injured in an accident caused by an underinsured motorist and the insured shows that the UM insurer will be liable for some general damages, then the insurance contract obligates the insurer to unconditionally tender a reasonable amount to its insured, not to settle the case, but to show good faith. LSA-R.S. 22:1892 (formerly 22:658); McDill v. Utica Mutual Ins. Co., 475 So.2d 1085 (La.1985). The amount due is a figure over which reasonable minds could not differ. McDill, supra.

In the present case, the plaintiff showed that he was injured in an auto accident caused by an underinsured tortfeasor and that the defendant was liable for general damages as the UM insurer. Thus, the defendant’s unconditional tender of $31,804 was consistent with the statute and the district court erred in ordering reimbursement of the amount unconditionally tendered to plaintiff in good faith.

Based upon the evidence presented, the plaintiff demonstrated that the defendant had issued a UM policy for the vehicle in which plaintiff was a passenger when he was injured in a work-related accident and that the |sdefendant was a third person liable to pay damages to plaintiff for injuries caused by an underinsured driver. Consequently, plaintiff is an insured under the defendant’s UM policy and we reverse the trial court’s grant of summary judgment in favor of the defendant, dismissing plaintiffs claims. Further, we vacate the trial court’s order that plaintiff reimburse the unconditional tender of payments made by defendant.

UM Coverage Limits

The plaintiff contends the district court erred in denying his motion for summary judgment regarding the amount of UM coverage available under the policy. Plaintiff argues he is entitled to UM coverage equal to the liability limits of $1 million because the defendant did not file an opposition to the motion proving that there was a valid selection of lower UM limits by its insured.

This court may review the denial of a motion for summary judgment filed by an appellant in conjunction with an appeal of the granting of summary judgment against the appellant when the issues involved are identical. Hood v. Cotter, 2008-0215, 0237 (La.12/2/08), 5 So.3d 819. In Hood, the supreme court allowed such review where the issues involved in the granting of summary judgment were “directly related” to the issues raised by the appellant’s motion for summary judgment. Here, since both motions for summary judgment involve UM coverage, we may properly review the denial of plaintiffs motion for summary judgment on appeal.

The burden of proof on summary judgment remains with the movant. However, if the movant will not bear the burden of proof at trial on the | ^matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, then there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2).

Summary judgment evidence includes the pleadings, depositions, answers to interrogatories, admissions on file and affidavits. LSA-C.C.P. art. 966(B). Un-sworn or unverified documents are not self-proving and will not be considered on summary judgment. Harris v. Dunn, 45,619 (La.App.2d Cir.9/22/10), 48 So.3d 367. A document that is not certified and not attached to an affidavit is not of sufficient evidentiary quality to be given weight in determining whether there remains a genuine issue of material fact. Harris, supra.

UM coverage equal to the liability policy limits is presumed under Louisiana law in the absence of a valid rejection of UM coverage or selection of lower limits. LSA-R.S. 22:1295; Gray v. American Nat’l Property & Casualty Co., 2007-1670 (La.2/26/08), 977 So.2d 839. The insurer bears the burden of proving that a named insured rejected in writing the UM coverage equal to bodily injury limits or selected lower limits. Gray, supra.

|1(lIn the present case, the plaintiff filed a cross-motion for summary judgment asking the court to find that the UM coverage limits are equal to the liability limits of $1 million, based on the lack of an executed UM coverage form. In support of his motion, plaintiff submitted a certified copy of the insurance policy containing a blank UM bodily injury coverage selection form. Thus, plaintiff demonstrated to the court that the UM selection form in the policy did not meet the requirements for a valid selection of lower UM limits. Once the plaintiff pointed out this lack of proof, defendant had the burden to present factual support to establish the ability to satisfy its evidentiary burden at trial. In response, defendant filed only a memorandum in opposition to plaintiffs motion, without attaching any affidavits, depositions or other certified documentation necessary to satisfy its burden to show a valid selection of lower UM policy limits. In its opposition, defendant apparently relied solely on its argument that plaintiffs exclusive remedy was under the provisions of the workers’ compensation law.

We note that in October 2012, the defendant mailed or faxed to the court a copy of a UM coverage form purportedly signed by a representative of the named insured on June 17, 2009, showing selection of UM coverage of $100,000 per accident. However, this document is not certified or attached to an affidavit and is not stamped as filed with the district court. In addition, this copy of the UM coverage form selecting lower limits than the liability limits contradicts the certified copy of the insurance policy which the defendant submitted with its own summary judgment motion and the Indefendant has not explained why the form was not filed with proper authentication in opposition to plaintiffs motion for summary judgment.

Based upon this record, we find that the UM coverage form offered by defendant after the court had taken the case under advisement does not satisfy the requirements for consideration as competent summary judgment evidence. Thus, the defendant failed to carry its burden of producing competent proof of a valid UM selection form by which the employer selected coverage limits lower than the liability limits of the policy. Consequently, we shall reverse the denial of plaintiffs motion for summary judgment and render judgment declaring that the UM coverage under the policy is equal to the liability coverage limits of $1 million.

CONCLUSION

For the foregoing reasons, the district court’s summary judgment in favor of Peerless Insurance Company is hereby reversed. We reverse the denial of plaintiffs summary judgment motion and render judgment in favor of the plaintiff, finding that the UM coverage under the policy is equal to the liability coverage limits of $1 million. We further vacate the trial court’s order that plaintiff reimburse the defendant for the payments unconditionally tendered. This matter is remanded for further proceedings. Costs in the district court and on appeal are assessed to the appellee, Peerless Insurance Company.

REVERSED; RENDERED AND REMANDED.