author: STEWART, J.

text:
    Angela HOLMES, Plaintiff-Appellant v. NURSECARE NURSING AND REHABILITATION CENTER, Defendant-Appellee.
    No. 47,999-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    July 24, 2013.

      Angela Holmes, In Proper Person.
    Hurlburt, Monrose & Ernest by M. Blake Monrose, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   STEWART, J.

|! Plaintiff/Appellant, Angela Holmes, is appealing the judgment of the workers’ compensation judge (“WCJ”), denying her benefits subsequent to September 27, 2009. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In August of 2008, Angela Holmes was hired as a nurse’s assistant at Nursecare Nursing and Rehabilitation Center (“Nursecare”). On May 15, 2009, Ms. Holmes sustained an injury while working within the course and scope of her employment at Nursecare. She sustained this injury by slipping on a puddle of water and falling on her back in a shower room while she was putting up some dirty laundry. She did not seek medical attention that day, and went on to complete her regular shift. Ms. Holmes was treated for lower back pain at a Quick Care Clinic the following day, May 16, 2009. Soon thereafter, she sought treatment from the physician of her choice, Dr. James Dossey. Dr. Dossey determined that Ms. Holmes suffered from a back contusion and recommended physical therapy and medication for her condition. He restricted her to light duty and continued to treat her for the next several weeks.

A lumbar MRI was performed on July 7, 2009. It showed multiple degenerative changes, particularly at the L4-5 disc on the left. Dr. Dossey recommended that Ms. Holmes seek an orthopedic consultation. On August 13, 2009, she sought treatment from an orthopedic surgeon of her choice, Dr. Eubulus Kerr. Dr. Kerr identified a small herniation at L4-5. He diagnosed Ms. Holmes with lumbar radicu-lopathy, and recommended that she receive physical therapy, along with epidural steroid injections. She |2opted not to follow Dr. Kerr’s recommendations, and did not return to him until September 6, 2009. She testified at trial that she did not seek the recommended treatment because she was “depressed.” However, she visited the emergency room on April 8, 2010, July 15, 2010, September 16, 2010, November 8, 2010, and December 31, 2010, each time complaining of back and leg pain related to the May 15, 2009, work incident.

After missing four days of work, Ms. Holmes returned to Nursecare on May 19, 2009, in a light duty job. On August 31, 2009, she was terminated from her employment at Nursecare for insubordination. During the next two years, she sought employment with between 144 and 180 prospective employers, either by phone or in person.

Ms. Holmes initially began receiving unemployment benefits during the week of October 3, 2009. Louisiana Workforce Commission records show that she received benefits for 72 weeks from October 2009 through June 2011.

On May 30, 2010, Ms. Holmes filed Form LDOL-WC-1008 with the Louisiana Office of Workers’ Compensation, arguing that “no wage benefits have been paid” and requesting to choose Dr. Carter Boyd as her treating physician. She was denied workers’ compensation benefits.

Trial on the merits was held on April 23, 2012. WCJ Patrick Robinson rendered judgment partially in favor of Holmes, and assigned the following written reasons:

• Holmes sustained an accident on May 15, 2009, in the course and arising out of employment with Nursecare, causing the injuries for which she was treated through September 27, 2009.
Is* Nursecare’s motion for involuntary dismissal in reference to Holmes’ motion to choose Dr. Boyd as her treating physician is granted.
• Any injuries claimed by Holmes subsequent to September 27, 2009, are not causally related to the May 15, 2009, incident.
• All medical benefits subsequent to September 27, 2009, are denied.
• All indemnity benefits subsequent to September 27, 2009, are denied.
• Holmes was entitled to supplemental earnings benefits, based upon a zero wage earning capacity, from September 1, 2009, through September 26, 2009, based upon a pre-injury average weekly wage of $341.50, which corresponds to a weekly indemnity rate of $227.28, plus judicial interest thereon from the date that each payment was due until paid.
• Nursecare failed to reasonably controvert Holmes’ claim for supplemental earning benefits from September 1, 2009, through September 26, 2009, and therefore is liable to her for a penalty in the amount of $2,000.00 and attorney fees in the amount of $2,000.00, plus judicial interest thereon from June 5, 2012, until paid.

LAW AND DISCUSSION

We note that Holmes is appearing before this court in proper person. Her brief simply sets forth a recitation of the facts surrounding the alleged work-related accident, and does not address the issue of whether the WCJ’s judgment was proper. This pro se brief does not comply with the requirement of Uniform Rules, Court of Appeal, Rule 2-12.4. It contains no assignments of error, no record references, and no jurisdictional statement. However, the courts of this State have considered briefs in improper form in instances when it is filed by pro se claimants. See Cheatham v. Luberski, 43,603 (La.App.2d Cir.9/17/08), 996 So.2d 373. In light of Holmes’ pro \ 4se status, this court will attempt to discern the substance of her argument and treat it as though properly raised.

Holmes’ pro se brief challenges the WCJ’s judgment that denied her benefits subsequent to September 27, 2009. More specifically, the tone of her brief suggests that she contends that the WCJ erred in determining that she was not entitled to workers’ compensation benefits for the complained of symptoms after September 27, 2009. She highlights her October 27, 2011, appointment with Dr. Kerr, who concluded that “her pain was most likely exacerbated” by the May 15, 2009, incident.

Compensable Injury

It is well settled that the factual findings of the WCJ are subject to manifest error review. Buxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275; Kinchen v. City of Shreveport, 46,490 (La.App.2d Cir.9/21/11), 73 So.3d 1011, writ granted, (La.12/2/11), 76 So.3d 1161. Under this legal standard, the reviewing court does not decide whether the fact finder was right or wrong, but only whether its findings are reasonable. Id.; Stobart v. State, 617 So.2d 880 (La.1993). The manifest error standard applies even when the decision of the WCJ is based upon written reports or depositions. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992); Alexander v. Brookshire Grocery Company, 42, 855 (La.App.2d Cir.1/9/08), 975 So.2d 100, writ denied, 08-0503 (La.4/25/08), 978 So.2d 367. Where there are two permissible views of the evidence, the fact | ^finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra; Johnson v. Bossier Parish Sch. Bd., 43, 817 (La.App.2d Cir.1/21/09), 3 So.3d 580, writ denied, 2009-0676 (La.5/15/09), 8 So.3d 586. Whether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Taylor v. Hollywood Casino, 41,196 (La.App.2d Cir.6/28/06), 935 So.2d 293; City of Shreveport, 43,132 (La.App.2d Cir.3/26/08), 980 So.2d 203.

An employee is entitled to compensation benefits if he or she suffers a personal injury by an accident arising out of and in the course of employment. La. R.S. 23:1031. The chain of causation required by the statutory scheme as adopted by the legislature in La. R.S. 23:1031 is that the employment causes the accident, the accident causes the injury, and the injury causes disability. Buxton, supra. The employee has the burden of proving, by a preponderance of the evidence, that the resulting disability is related to an on-the-job injury. Id.

As we stated in the fact portion of this opinion, Ms. Holmes injured herself on May 15, 2009, while working in the course and scope of her employment at Nurse-care. At trial, she testified that she sustained this injury by slipping on a puddle of water and falling on her back in a shower room while she was putting up some dirty laundry. Soon thereafter, Ms. Holmes sought treatment from the physician of her choice, Dr. James Dossey. Dr. Dossey, a general practitioner, determined that Holmes | (¡suffered from a back contusion and recommended physical therapy and medication for her condition. He restricted Ms. Holmes to light duty and continued to treat her for the next several weeks. She returned to work on May 19, 2009, and worked in a light duty capacity until she was terminated for insubordination on August 31, 2009.

A lumbar MRI was performed on July 7, 2009. It showed multiple degenerative changes, particularly at the L4-5 disc on the left. Dr. Dossey recommended that Holmes seek an orthopedic consultation. In a “Return-to-Work report,” dated July 10, 2009, Dr. Dossey selected the “light work” option in the degree of work portion of the report. On the second page of this report, Dr. Dossey made a notation that “[it is] not reasonable to expect release within 90 days.”

On August 13, 2009, Ms. Holmes sought treatment from the orthopedic surgeon of her choice, Dr. Eubulus Kerr. She complained of neck pain that radiated down her lower left extremity. Dr. Kerr identified a small herniation at L4-5. Dr. Kerr diagnosed Ms. Holmes with lumbar radicu-lopathy, and recommended that she receive physical therapy, along with epidural steroid injections. Ms. Holmes opted not to follow Dr. Kerr’s recommendation to take the steroid injections, and did not return to see him until September 6, 2009. During the September 6, 2009, visit, she complained of right upper trapezial pain, and lower back pain that radiated to both posterior lower extremities.

|7She testified at trial that she did not seek the recommended treatment because she was “depressed.” No evidence of said depression was presented.

Even though Ms. Holmes did not seek treatment from Dr. Kerr from September 6, 2009, to October 27, 2011, she did visit the emergency room on five different occasions, spanning from April 8, 2010, to December 31, 2010. When she finally returned to seek treatment from Dr. Kerr on October 27, 2011, a MRI of her lumbar spine was performed. The progress report stated that the MRI results revealed disk desiccation and degeneration of L3^1, L4-5 disk degeneration with moderate spinal stenosis, and endplate changes with bilateral recess stenosis. Ms. Holmes complained of lower back pain, as well as numbness and tingling in both upper extremities. The progress report noted:

The patient was asking me also if this is all caused by workers’ compensation injury in 2009 from falling based on the MRI; however, the patient’s changes appear to be consistent with degeneration in nature. However, she states she does (sic) not have pain prior to the fall. There are no acute changes to suggest any of these were caused by the fall. However, she was asymptomatic prior to the fall, so our opinion is that the patient’s pain most likely was exacerbated by the fall, however, this is not an exact science and is only an opinion.

The evidence does not indicate that Dr. Kerr had the opportunity to review reports from Ms. Holmes’ emergency room visits during the time in which she did not seek treatment from him. Further, there is no indication that he was even aware of Ms. Holmes’ medical history prior to the May 15, 2009, fall. For these reasons, the WCJ wisely chose not to rely heavily on Dr. Kerr’s opinion in this progress report.

IsWhen she followed up with Dr. Kerr on March 23, 2012, Ms. Holmes complained of neck pain, headaches, a trapezial-type pain, and lower back pain. Dr. Kerr noted in his progress report that Ms. Holmes’ MRI of her lumbar spine revealed a broad-based disk bulging at L4-5 with bilateral recess stenosis and endplate changes at L4-5.

We note that Ms. Holmes had a longstanding history of back problems. On May 20,1996, while working as a clerk, she fell flat on her back on a concrete floor. Apparently, she was attempting to sit at her desk and the chair slipped from beneath her. She immediately went to the emergency room at St. Paul Medical Center in Dallas, Texas, complaining of lower back pain, and to a lesser degree, upper back pain. According to the emergency department record, Ms. Holmes stated that she has had a history of chronic back pain. She had received treatment from several physicians.

Based on this evidence, the WCJ determined that Ms. Holmes met her burden of proving a compensable injury, but only until September 2009. We agree with this finding. The WCJ’s determination that Holmes did not prove that her symptoms after September 2009 were causally related to her work accident is clearly supported by the record.

Supplement Earnings Benefits (“SEB”)

Ms. Holmes asserted in her brief that the trial erred in determining that she was not entitled to workers’ compensation benefits for the complained of symptoms after September 27, 2009. This court assumes that she is referring to her entitlement to SEB.

|nThe purpose of supplemental earnings benefits (“SEB”) is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993). An employee is entitled to receive SEB if he or she sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his or her average pre-injury wage. La. R.S. 28:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra; Freeman v. Poulan/Weed Eater, 93,1530 (La.1/14/94), 630 So.2d 733. This analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Banks, supra; Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989).

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEB or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to, or proven to be available to, the employee in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Banks, supra; Daigle, supra. Actual job placement is not required. Banks, supra.

|inAs stated throughout this opinion, Dr. Dossey restricted Holmes to light duty after her May 15, 2009, accident. Holmes returned to work on May 19, 2009, and worked in a light duty capacity until she was terminated for insubordination on August 31, 2009.

Ms. Holmes chose to abandon her medical treatment in September of 2009, and applied for and received unemployment benefits beginning the week of October 3, 2009. When she applied for and received these benefits, Holmes was representing that she was able to work. Coincidentally, Ms. Holmes’ emergency room treatment on April 8, 2010, coincided with the commencement of a six-week termination of her unemployment benefits.

We note that Ms. Holmes is not entitled to SEB during the 72 weeks between October 2009 and June 2011 that she received unemployment benefits. La. R.S. 23:1225(B). She received unemployment benefits during the following weeks:

• Week ending 10/30/09 through week ending 3/27/10;
• Week ending 5/15/10 through week ending 9/18/10;
• Week ending 10/19/10 through week ending 1/11/11;
• Week ending 3/26/11 through week ending 7/2/11.

As we previously stated, we agree with the WCJ’s determination that Ms. Holmes did not prove that her symptoms after September 2009 were causally related to her May 15, 2009, work accident. Therefore, we find that she is not entitled to SEB for the weeks between October 2009 and June 2011 that she did not receive unemployment benefits.

| ^Penalties and Attorney Fees Award

Since Nurseeare denied Ms. Holmes SEB after terminating her employment due to insubordination with no supporting evidence, this court agrees with the WCJ’s finding that Nurseeare failed to reasonably controvert the claim for SEB for the period of September 1-26, 2009. Therefore, awarding Ms. Holmes penalties in the amount of $2,000.00 and attorney fees in the amount of $2,000.00 are appropriate in this matter. La. R.S. 23:1201(F).

CONCLUSION

For the reasons discussed above, we affirm-the WCJ’s judgment denying Ms. Holmes benefits subsequent to September 27, 2009. All costs are assessed against Ms. Holmes.

AFFIRMED.

      . Nursecare filed a motion to dismiss this appeal on the basis that Holmes’ brief failed to comply with URCA Rules 2-12.1 through 2-12.6. The motion was denied on February 28, 2013.

      . Ms. Holmes suffered another fall at work on June 25, 2009. However, the second accident was not referenced in the pleadings and is not at issue in this proceeding.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Larry WAGONER, et al., Plaintiffs-Appellants v. CHEVRON USA, INC., et al., Defendants-Appellees.
    No. 48,119-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 24, 2013.
    Rehearing Denied Sept. 19, 2013.

      Talbot, Carmouche & Marcello, Baton Rouge, LA, by Donald T. Carmouche, Victor L. Marcello, John H. Carmouche, William R. Coenen, III, Brian T. Carmouche, Todd J. Wimberley, Ross J. Donnes, D. Adele Owen, Sturgeon & Boyd, by John Sturgeon, Jr., for Appellants, Larry Wagoner, Jean Wagoner, Russell G. Wagoner, Sr., Angela C. Wagoner, Roy Wagoner, and Ivie Wagoner.
    Gore & Loy by Brent Stafford Loy, Kean Miller, LLP, New Orleans, LA, by Michael R. Phillips, Louis Matthew Gross-man, Richard D. McConnell, Jr., for Ap-pellee, Chevron USA, Inc.
    Adams, Hoefer, Holwadel & Eldridge by D. Russell Holwadel, Ira J. Rosenzweig, Gregory 0. Currier, Wall, Bullington & Cook by Jonathan Robert Cook, New Orleans, LA, for Appellees Denbury Onshore, LLC, Smith Operating & Management Co., Oil & Ale LSJ, LLC, Diamond South Operating, LLC, and LSJ Exploration, LLC.
    Scofield, Gerard, Pohorelsky, Gallaugher & Landry, Lake Charles, LA, by Patrick Donovan Gallaugher, Robert E. Landry, Phillip W. DeVilbiss, Kevin P. Fontenot, for Appellee, LSJ Exploration, LLC.
    Jones & Odom, by James Marshall Jones, Jr., for Appellees, Smith Operating & Management Co. and Diamond South Operating, LLC.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Albert Moore Hand, Jr., Jason Andrew Green, for Appellees, Merit Energy Company, LLC Merit Management Partners I, LP, Merit Energy Partners III, LP, Merit Energy Partners D-III, LP, and Devon Energy Production Company, LP.
    Before CARAWAY, DREW and GARRETT, JJ.
   DREW, J.

Lin this matter involving alleged damages to property caused by contamination from mineral operations, the primary issue is the legal effect of the mineral servitude owners’ rights to sue for damages that were conveyed to the surface owners. The plaintiffs acquired the property (surface rights only) in 2004. Oil and gas exploration on the property began in 1945.

By assignments executed from the mineral servitude owners of 99% of their rights to make claims for damages, the plaintiffs sought recovery for harm resulting from long-term oil and gas activities on their property conducted or controlled by one or more of these defendants:

• Chevron U.S.A., Inc. (“Chevron”), the original mineral lessee of the Wagoners’ property (via a leasing agent);

• Merit Energy Company, LLC; Merit Management Partners I, L.P.; Merit Energy Partners, III, L.P.; and Merit Energy Partners D-III, L.P. (collectively “Merit”);

• Devon Energy Production Company, L.P. (“Devon”);

• Denbury Onshore, L.L.C. (“Denbury”);

• Smith Operating & Management Co. (“Smith”);

• LSJ Exploration, L.L.C. (“LSJ”);

• Diamond South Operating, L.L.C. (“Diamond”); and

• Oil & Ale LSJ, L.L.C. (“Oil & Ale”).

Merit, Devon, Denbury, Smith, LSJ, and Diamond are direct or remote assignees of Chevron.

|2The Wagoners appeal a judgment from the Sixth Judicial District Court which granted the exceptions of res judicata filed by Chevron, Merit, and Devon and granted exceptions of lis pendens filed by Denbury, Smith, LSJ, Diamond, and Oil & Ale. We reverse, in part, the judgment of the trial court and remand for further proceedings.

The Wagoners’ acquisition of the mineral servitude owners’ right to sue for damages to the property, which occurred before the Wagoners purchased the surface rights, resulted in plaintiffs appearing in a different capacity than they possessed as plaintiffs in previous litigation against these same defendants. This judgment is strictly limited to that determination. A resolution on whether plaintiffs are entitled to any recovery must be determined by the trial court to which this matter is remanded for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In the previous litigation, Wagoner v. Chevron, 45,507 (La.App.2d Cir.8/18/10), 55 So.3d 12, writ denied, 2010-2773 (La.3/2/12), 83 So.3d 1032 (hereinafter Wagoner I), this court set out the factual background in its opinion on rehearing:

This action involves a claim for damages to a 193-acre tract of land located in the Lake St. John Oil and Gas Field in Concordia Parish, Louisiana. Operations on the property were commenced by Chevron in 1945 pursuant to three mineral leases obtained from the previous owners, the Pasternack family. In June 1999, the Pasternack family sold the property, reserving their mineral interests, in a cash sale to James and Jane Funderburg and David and Dale Steck-ler. One month | ?,later, the Stecklers sold their interest in the property to the Funderburgs. In 2004, Plaintiffs purchased the property from the Funder-burgs. None of the transfers of the surface interests in Plaintiffs’ chain of title included a specific assignment of the right to sue for property damages. After purchasing the land from the Fun-derburgs, Plaintiffs discovered that the subsurface of their property was contaminated with exploration and production waste, particularly through the use of unlined pits. Plaintiffs filed suit in August 2008, claiming that their property was contaminated by the oil and gas exploration and production activities of Defendants.
From 1945 to 1992, Chevron leased and conducted oil and gas operations on the property now owned by Plaintiffs. From 1992 through 2002, Devon (previously named Pennzoil) conducted operations on the property pursuant to a lease assignment from Chevron. From 2002 to 2004, Merit conducted operations on the property pursuant to a lease assignment from Devon.

Wagoner I, 55 So.3d at pp. 20-21.

In Wagoner I, the Wagoners sued the same parties named as defendants in this ease (Chevron, Merit, Devon, Denbury, Smith, Diamond, LSJ, and Oil & Ale) in this same court. The Wagoners’ claims against Chevron, Merit, and Devon in Wagoner I were dismissed on an exception of no right of action. That ruling was based upon the application in Wagoner I of the “subsequent purchaser rule.” This court affirmed the judgment sustaining the exception of no right of action. The Louisiana Supreme Court denied writs.

In Walton v. Burns, 47,388 (La.App.2d Cir.1/16/13), — So.3d -, 2013 WL 163739, Judge Moore explained that, although the supreme court’s writ denial in Wagoner I is without precedential value, the writ denial allowed this court’s application of the subsequent purchaser rule to stand.

The defendants in Wagoner I, who appeared in the mineral chain of |4title after the Wagoners acquired their surface ownership in 2004, were not dismissed from Wagoner I (namely, Denbury, Smith, Diamond, LSJ, and Oil & Ale), and remain defendants in Wagoner I today.

The “subsequent purchaser rule” was explained by the supreme court in Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 2010-2267 (La.10/25/11), 79 So.3d 246:

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

Eagle Pipe, supra at pp. 256-257.

Absent an assignment or subrogation of the right to sue a third party for property damage inflicted before acquisition of the property, the present property owner has no right of action to sue third parties for damages occurring prior to his purchase. Eagle Pipe, supra.

After the district court in Wagoner I granted the exceptions of no right of action filed by the defendants Chevron, Merit, and Devon, the Wagoners obtained an assignment of 99% rights from the owners of the mineral servitudes (who were also successors of former surface owners) to seek recovery for damages to the property caused by oil exploration and production.

The Wagoners attempted to assert these assigned claims amending their pleadings in Wagoner I. Their motion to amend was denied. 1 ¿Subsequently, the Wagoners filed this present litigation, hereinafter denoted as Wagoner II. All defendants responded to Wagoner II with exceptions of res judicata or lis 'pendens. The trial court granted all of the exceptions, dismissing the case in its entirety with prejudice as to all defendants.

The Wagoners have appealed.

DISCUSSION

The issue is whether either res judicata or lis pendens bars the Wagoners from suing to recover damages which occurred prior to their 2004 acquisition of the property. The Wagoners claim that by virtue of the assignment, they acquired new rights they did not possess at the time of Wagoner I. It is under these newly acquired rights that they bring the current claims. The present suit against the oil and gas companies alleges liability for breach of obligations owed to the mineral servitude owners and lessors — the Paster-nacks — under the mineral lease and the Mineral Code.

In Wagoner I, the trial court found, and this court affirmed, that the landowners at the time the contamination occurred possessed the real and actual interests to seek the damages. The right to damages which is conferred by a lease (either mineral or a predial lease) is a personal right, not a property right. Therefore, the right to seek damages does not pass to the new land owners absent a specific conveyance of that right in the instrument of sale.

As they were not parties to the original lease from the Pasternacks to Chevron, the Wagoners’ deed contained no express assignment of the right to sue mineral lessees for damages. Additionally, those leases contain no | language allowing the Wagoners to sue for damages as third party beneficiaries (via a stipulation pour autri). As current surface owners, the Wagoners had no right to bring suit against companies that conducted exploration and production on the property prior to the plaintiffs’ purchase in 2004. Wagoner I, 55 So.3d at p. 23.

In addition to suing the mineral lessees for damages resulting from oil exploration and production, current surface owners of contaminated property have other legal remedies available to them. Among those avenues noted in Eagle Pipe, supra, were an action in redhibition, a suit to rescind the sale, and/or an action to reduce the purchase price. Further, an action for remediation of the property exists. Eagle Pipe, supra.

In Walton v. Burns, supra, Judge Moore also noted legal remedies for surface owners of contaminated property. La. R.S. 31:11(A) provides that the landowner, the owner of the mineral rights and the lessees of minerals must conduct their activities with “due regard” for the rights of others. La. R.S. 31:22 directs that the owner of a mineral servitude is obligated to restore the surface to its original condition. In La. R.S. 31:122, the mineral lessee is directed to conduct his activities as a “reasonably prudent operator.” La. R.S. 30:29 sets out a special procedure for resolving environmental damages from oilfield operations. Walton, supra.

Under the foregoing reasoning, the Wagoners (surface owners) could have brought an action against the Pasternacks (mineral servitude owners) to obtain remediation. The Wagoners noted at oral argument that they did not want to sue the Pasternacks and that, in exchange for the Wagoners’ | ^promise not to file suit against them, the Pasternacks assigned the Wagoners 99% of their rights to seek damages caused by oilfield contamination. Whether that assignment has transformed the status of the parties, causes of action, and the transactions and occurrences, as the Wagoners allege, is the determinative issue in this case.

In Eagle Pipe, supra, the court addressed the basic principles of the civil law of property and obligations. La. C.C. art. 476 provides that a person may have various rights in things such as (1) ownership, (2) personal and predial servitudes, and (3) other real rights allowed by law. La. C.C. art. 477 defines ownership as the right that confers on a person direct, immediate and exclusive authority over a thing.

The owner of a thing may perform a certain number of juridical acts relating to the thing, all consisting of the transfer to another, in whole or in part, the right of enjoyment and of consumption that belongs to the owner of the thing. If he transmits all his right, it is said that he alienates the thing; he performs an act translative of ownership. If he grants merely a right of partial enjoyment of the thing, it is said that he dismembers his ownership. He creates upon the thing a real right of usufruct, emphyteusis or servitude. He is still owner but his ownership has been dismembered. Somebody else has a part, more or less important, of his rights upon the thing.

Eagle Pipe, supra at p. 258

The foregoing analysis by Justice Clark reflects Comment (d) of La. C.C. art. 476 which notes individuals have contractual freedom to create new real rights by dismembering them ownership as they see fit. An example of this dismemberment of ownership is the Pasternacks’ transfer to the Wagoners of their rights to seek damages for oil activity contamination.

Lis Pendens

isThe Wagoners claim that the trial court erred when it granted defendants’ (Denbury, Smith, LSJ, Diamond, Oil & Ale) exception of lis pendens. When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by filing the declinatory exception of lis pen-dens. La. C.C.P. arts. 531, 925 A(3). A fair test to decide whether an exception of Us pendens should be granted is to determine whether the first suit would be res judicata to the second suit. Walton, supra.

Res Judicata

The Wagoners claim that the trial court erred when it granted defendants Chevron, Devon, and Merit’s exceptions of res judicata. The following analysis will be used to determine whether the trial court erred in granting the exceptions of both res judicata and lis pendens.

La. R.S. 13:4231, as amended in 1990, defines res judicata in Louisiana:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

]gThe supreme court in Burguieres v. Pollingue, 2002-1385 (La.2/25/03), 843 So.2d 1049, determined that, based upon the language of the statute, five elements must be satisfied to conclude that a second action is precluded by res judicata: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. All five of these prerequisites must be satisfied.

Citing the supreme court’s opinion in Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210, this court observed that the principle of res judicata is stricti juris; any doubt concerning application of res judicata must be resolved against its application. Flanigan v. City of Shreveport, 45,459 (La.App.2d Cir.10/27/10), 50 So.3d 938.

In the present case, the first two elements for application of res judicata are satisfied. The parties agree that judgment in Wagoner I is both final and valid.

The third requirement of res judicata is that the parties in both suits are the same. In Burguieres, supra, the supreme court explained that, although not explicitly stated, the requirement in La. R.S. 13:4231 that the parties be the same means the identical parties must appear in the same capacities in both suits.

In re Succession of Burguieres, 00-147 (La.App.5th Cir.10/18/00), 802 So.2d 660, the decedents’ three children alleged their father’s lack of | incapacity to make a testament which they asserted was made pursuant to undue influence. They sued their aunt, Mrs. Pollingue in her capacity as executrix of the succession, and sought to annul the testament and remove her as executrix. After the children prevailed and the judgment was final, the children again sued Mrs. Pollingue in her capacity as curatrix of the decedent and her husband, as under curator, seeking damages for breach of their fiduciary duty. On any claims associated with Mrs. Pollingue’s actions as executrix, the supreme court affirmed the grant of the exception of res judicata. The grant of the exception of res judicata as to any claims related to her actions as curatrix (and not arising out of her actions as executrix) was reversed. Mrs. Pollingue was sued in a different capacity, a curatrix, in the second suit as opposed to her status as the succession executrix in the first suit. Likewise the granting of the exception of res judicata as to Dr. Pollingue was reversed, since there was a lack of identity of parties. He had not been not a party to the first suit. Burguieres, supra.

The Wagoner II defendants here claim that the assignment does not alter anything from Wagoner I and is nothing more than an attempt to manufacture claims. The defendants support this assertion by describing the petitions in Wagoner I and Wagoner II as “identical.” However, the petition in Wagoner II includes an additional paragraph asserting new rights the Wagoners obtained as a result of the Pasternacks’ assignment. The first sentences in paragraph 3 of the petitions in Wagoner I and Wagoner II are identical:

Plaintiffs are lessors, assignees, third-party beneficiaries, and/or successors in interest to certain oil, gas, and mineral |,] leases between plaintiffs and defendants, or own property contaminated by the oil and gas activities conducted or controlled by one or more defendants.

In Wagoner II, this paragraph is expanded to contain the claims under the assignments from the Pasternacks. Additionally, the Wagoner II petition contains allegations paragraphs 38-47 which do not appear in the original Wagoner I petition. Despite the defendants’ contention that the assignment does not alter anything from the previous suit, we find that it does, in fact, alter the capacity in which the plaintiffs appear.

In Wagoner I, the Wagoners were barred by the subsequent purchaser rule from seeking damages for harm to the property occurring prior to their 2004 purchase. The purpose of res judicata is to bar relitigation of claims that have been previously adjudged. This doctrine serves public policy interests by promoting judicial efficiency and fairness between the parties. La. R.S. 13:4231 Comment (a). Res judicata does not bar a subsequent 112claim between the same parties if the parties appear in a different capacity. Burguieres, supra. Only the Wagoners’ rights as the present surface owners were at issue in Wagoner I. Via the assignment, the Wagoners have essentially stepped into the shoes of the Pasternacks, the prior mineral servitude owners/lessors.

The rights of the servitude owners/lessors were not litigated in Wagoner I. Since the Pasternacks’ claims were not previously litigated, neither res judicata nor lis pendens applies to the Wagoners’ current claims arising from the Paster-nacks’ assignments. Barring these claims would not serve judicial efficiency or fairness between the parties and would unfairly and improperly preclude the claims of the mineral servitude owners and their assignees, the Wagoners. In Wagoner I, the plaintiffs filed suit in their capacity as present surface owners who acquired the property in 2004. In Wagoner II, the plaintiffs are also suing in their capacity as assignees of the rights of the mineral servitude owners/lessors as well as prior surface owners.

Wagoner I and Wagoner II do not include the “same parties,” because the Wagoners are appearing in a different capacity in Wagoner II than they did in Wagoner I. They could not have previously appeared in their current capacity, as they did not obtain the rights of the servitude owners/lessors until after the final judgment in Wagoner I. Because the second suit concerns the defendants’ obligations to the mineral servitude owners/lessors, it follows that the second suit should not be precluded.

The defendants rely on Minvielle v. Atlantic Refining Co., 05-1312, 2007 WL 2668715 (W.D.La.2007), in support of their exceptions of res judicata and lis pendens. Minvielle, however, is distinguishable from the present case. The initial Minvielle litigation was to recover damages for contamination arising out of oil and gas activities:

On October 19, 2004, this court dismissed plaintiffs claims for lack of standing. The ruling was based on a finding that the 1998 cash sale did not confer on plaintiff a specific assignment of rights to recover damages from third parties, nor did the 1961 lease create a stipulation pour autri in favor of plaintiff. The court concluded that plaintiff lacked standing to bring contractual claims arising from the 1961 lease. As to the tort claims, the court also concluded that plaintiff lacked standing because plaintiff was seeking damages arising from operations which occurred prior to plaintiffs acquisition of the land.

The Minvielle plaintiff asserted the same rights in both actions and never claimed to be appearing in a different capacity or asserting different rights. After dismissal of the first suit, the plaintiff filed a second suit and attempted to use an “Amendment to Act of Cash Sale” to show that their vendors had assigned their personal right to sue for damages at the time of the original sale. Minvielle attempted to cure the lack of standing with the amended sale which purported to confer standing. The claims in both suits were identical, the parties were the same and the judgment of lack of jurisdiction was final. The court found that the second suit was barred by res judicata. Minvielle, supra.

In Wagoner I, the plaintiffs asserted only those rights they believed they possessed as present surface owners. In the present action, the Wagoners are appearing as holders of the mineral servitude owner’s rights to damages from oilfield contamination — rights they only acquired after the final judgment in Wagoner I.

| uThis court in Wagoner 1 stated that the right to damages conferred by a lease (whether mineral or a predial) is a personal right, not a property right. That personal right to sue for damages does not pass to the new owner without a specific conveyance of that right in the instrument of sale; i.e., the mineral servitude owner’s personal right to sue for damages must be expressly assigned. The Wagoners did not and could not claim that the Paster-nacks intended to assign them their rights at the time of the original sale because the Pasternacks were not the Wagoners’ vendors. Because the Pasternacks had not yet assigned to the Wagoners their rights at the time of the original sale, the Wagoners did not and could not have attempted to assert those claims in Wagoner I.

A person appearing in different legal capacities may bring multiple actions involving the same transaction or occurrence without being barred by res judica-ta. Burguieres, supra. We find that the Wagoners do not appear in the second suit in the same capacity in which they appeared in the first. Because of this difference in capacities, there is a lack of identity of the parties between the two suits.

CONCLUSION

For the foregoing reasons, we conclude that the trial court erred in finding that the plaintiffs appeared in the same capacities in Wagoner I and this litigation, Wagoner II. The claims of the Wagoners arising from their status as surface owners since 2004 were dismissed in Wagoner I. The grant of the exception of res judicata as to Chevron, Merit, and Devon as to 11fithe Wagoners’ claims as surface owners is affirmed along with the dismissal of those claims with prejudice. For the Wagoners’ claims made as assignees of the Pasternacks right to sue for damages as mineral servitude owners, the exceptions of res judicata as to Chevron, Merit, and Devon are reversed, and the matter is remanded for further proceedings on those claims.

As previously noted, the Wagoners’ actions as surface owners since 2004 against Denbury, Smith, LSJ, Diamond, and Oil & Ale are pending in Wagoner I. The sustaining of the exceptions of lis pendens as to those claims against those defendants are affirmed. The granting of any exception dismissing the Wagoners’ claims against Denbury, Smith, LSJ, Diamond, and Oil & Ale arising from the Wagoners’ status as assignees of the Past-ernacks’ right to sue for damages as mineral servitude owners is reversed, and the matter is remanded for further proceedings.

The trial court is directed to consolidate these matters for trial. All costs of the appeal are assessed to the defendants.

DECREE

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS FOR FURTHER PROCEEDINGS.

CARAWAY, J., concurs.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, DREW, MOORE and GARRETT, JJ.

Rehearing denied.

WILLIAMS, J., would grant rehearing.

      . Plaintiffs are Larry Wagoner, Jean Wagoner, Russell G. Wagoner, Sr., Angela C. Wagoner, Roy Wagoner, and Ivie Wagoner ("the Wagoners”).

      . These assignments were executed at the end of 2009 and early 2010 and filed into the public records on September 7, 2010.

      . We observe that the interests of judicial economy and efficient use of judicial resources will be served by a consolidation for trial on the merits of this litigation with the previous suit, Wagoner I, which is still pending in the trial court.

      . This opinion authored by Justice Clark contains a scholarly dissertation on Louisiana civil law of property and obligations along with the detailed history of the development of the subsequent purchaser rule.

      . Plaintiffs are third-party beneficiaries to certain oil, gas, and mineral leases between plaintiffs and defendants and are owners of property contaminated by the oil and gas activities conducted or controlled by one or more of the defendants. Plaintiffs further state that the mineral servitude owners for the property at issue in this litigation have assigned to plaintiffs 99% of their claims for damages caused by oilfield operations on the property. As shown in the documents attached as Exhibit A, these assignments include, without limitation, (a) the mineral servitude owners’ rights, title, claims, demands, and interest in the Property, surface and sub-surface, real, personal and mixed, movable, immovable, corporeal and incorporeal, including any personal or real claims for property damages caused to the property and excluding the rights to the actual mineral servitude, (b) any and all rights, real or personal, to claim property or remediation damages from anyone, including but not limited to former owners, lessees or other persons with an interest of any kind in the property, all former or current mineral lessees, assignees, or sublessees of the property, any and all former surface lessees, mineral servitude owners or assignees of the property, and any and all oil and gas operators, drillers, working interest or service companies, (c) any and all rights, real or personal, to make claims for environmental contamination or pollution against anyone arising out of or associated with any oil and gas operations or any other operations that have occurred on the property, whether before, during or after the mineral servitude owners’ ownership of the property, and (d) any and all rights to assert claims for breach of any mineral or surface leases affecting the property as a result of environmental contamination or pollution. As the assignees of the foregoing rights, plaintiffs are entitled to pursue the claims set forth in this petition.

      . Wagoner, supra, 55 So.3d at p. 23.


text:
    Robert MITCHELL, et al., Plaintiff-Appellee v. Jessie D. COOPER, Estelle Jones Gilbert, Len Jones, Carey Jones, and Josephine Douglas-Peters, Defendant-Appellant.
    No. 48,125-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 24, 2013.

      Carl Henry Franklin, Shreveport, LA, for Appellants, Len Jones, Carey Jones, Succession of Estelle Jones Gilbert.
    Josephine Douglas-Peters, In Proper Person/Appellant.
    Blanchard, Walker, O’Quin & Roberts, Shreveport, LA, by Jerry Edwards, for Appellees, Robert Mitchell, et al.
    Keith D. Aytch and Bonita Aytch-Wilkes, In Proper Person/Appellees, Co-Executors of Succession of Harvey Aytch.
    Before DREW, MOORE and LOLLEY, JJ.
   DREW, J.

11 Josephine Douglas-Peters appeals a judgment ordering a partition by licitation without benefit of an appraisal of three noncontiguous rural tracts.

We affirm.

FACTS

The land at issue consists of three tracts of land located several miles from Haugh-ton in Bossier Parish. Tract One contains 21 acres in the shape of a rectangle base with an “arm” running east-west from the base’s southwest corner. Tract Two is in the shape of a rectangle and measures approximately 18.5 acres. Tract Three is mostly in the shape of a rectangle. It measures approximately 78.5 acres.

As established at trial, co-owners shared undivided interests in the property in the following percentages:

• 25% Estelle Jones Gilbert and Harvey Aytch

• 25% Jones Estate Management

• 14.58% Scott Oliphant and Jerri Oliphant

• 8.38% Carey Jones

• 8.33% Len Jones

• 7.29% Robert Mitchell, III

• 4.17% Josephine Douglas-Peters

• 3.65% Kelsey Boyter

• 3.65% Robert Mitchell, IV

[ ^Robert Mitchell, III, Robert Mitchell, IV, Kelsey Boyter, Scott Oliphant, and Jerri Oliphant filed suit against the remaining co-owners seeking a partition by licitation. The plaintiffs asserted they were entitled to a partition by licitation on the ground that the defendants were absentees. However, as the lawsuit progressed, the defendants, or their representatives in some instances, filed answers. The plaintiffs established to the court and to the defendants prior to trial, as was shown in their pretrial memorandum, that the partition by licitation was now being sought because of the characteristics of the property. The plaintiffs’ evidence at trial likewise concerned the property’s characteristics.

Following a trial on the merits, the court ordered partition by licitation without benefit of appraisal, and awarded the plaintiffs $750 in attorney fees against the Succession of Harvey Aytch. Douglas-Peters has appealed.

DISCUSSION

Douglas-Peters argues on appeal that the trial court erred in ordering the tracts partitioned by licitation.

Unless otherwise provided by law or juridical act, no one may be compelled to hold a thing in indivisión with another, and a co-owner has a right to demand partition of a thing held in indivisión. La. C.C. art. 807; Ark-La-Miss Timber Co. v. Wilkins, 36,485 (La.App.2d Cir.12/11/02), 833 So.2d 1154.

The court shall decree a partition in kind when the thing held in indivisión is susceptible to division into as many lots of nearly equal value as there are shares and the aggregate value of all lots is not significantly lower than the value of the property in the state of indivisión. La. C.C. art. 810.

When the thing held in indivisión is not susceptible to partition in kind, the court shall decree a partition by licitation or by private sale and the proceeds shall be distributed to the co-owners in proportion to their shares. La. C.C. art. 811.

The burden of proof is on the party seeking partition by licitation to prove that the property cannot be divided in kind. Tri-State Concrete Co. v. Stephens, 406 So.2d 205 (La.1981).

The general rule is that partition in kind is favored over partition by licitation. Tri-State Concrete, supra. Except as otherwise provided by law, or unless the property is indivisible by nature or cannot conveniently be divided, the court shall order the partition to be made in kind. La. C.C.P. art. 4606.

Property cannot be conveniently divided when the division would result in a diminution of its value, or loss or inconvenience to one of the owners. Entrada Co. v. Unopened Succession, 38,800 (La.App.2d Cir.9/22/04), 882 So.2d 661.

| ,,The decision of whether land should be divided in kind or by licitation is a question of fact to be decided by the trial court. Green v. Small, 227 La. 401, 79 So.2d 497 (La.1955).

The trial court had the benefit of expert testimony from Normand Roy on behalf of the plaintiffs, and from John Lloyd and Forrest Rayburn on behalf of the defendants. Lloyd and Roy testified as expert real estate appraisers. Rayburn testified as an expert surveyor.

Roy relied on soil conservation maps when assessing the suitability of the land after it became impossible for him to gain access to the interior of any of the tracts because of the existing underbrush. He learned that the tracts had similar sandy loam surfaces, which he felt left them with poor potential for farming and fair potential for use as a pasture, making forestry the best use of the property.

Rayburn was asked by Douglas-Peters to divide each tract equally into four sections. He walked the perimeters of the tracts, and entered some of the tracts in order to get a better sense of what they looked like. Rayburn examined the sites to study any survey problems, road access, utilities, and general property descriptions that would affect partitioning the property. Lloyd performed a site inspection of the properties.

The court also heard testimony from Robert Mitchell, III, regarding the conditions and physical characteristics of the property. Mitchell was familiar with the three tracts because not only was he raised near them, but he also owns property adjacent to some of the tracts. In particular, he owns | ¿property on two sides of Tract Two, as well as on the south side of Tract Three.

Mitchell stated that water pooled on the east end of Tract Two, which he said had a low area of four to five acres that remains wet. He also stated that there were ditches in the north and eastern areas of Tract Three that held water, and that its southeast corner stayed wet.

Roy could not completely assess the flood potential of the property since he was unable to walk on the tracts as a result of the underbrush. Nonetheless, he did not think there were any special flooding considerations. 'While there may have been areas where water stood longer after a rainstorm, the property was not in a flood plain, and the soil handbook indicated that the tracts drained fairly well and the sandy soil would allow for some absorption.

Tract One

Although Douglas-Peters told Lloyd that she was hoping to partition each tract into four parts, his focus was to appraise the three tracts regardless of her proposed partition.

Tract One, which is approximately 21 acres, had no road access. Lloyd appraised the tract as being valued at $168,000, which he made subject to a road being connected to Potter Road because the tract is landlocked.

Roy believed that partitioning Tract One by dividing it would be virtually impossible because if the owner with the largest interest took part of the “arm” and part of the base, it would leave the remaining owners ^without access to the remainder of the tract. Roy stated that even if Tract One were developed for residential use, which he would not recommend, rights of egress and ingress would need to be obtained, and the arm would have to be used as a road. Roy appraised Tract One as being worth $58,000.

When Rayburn examined Tract One, he realized there were some questions about where the section lines and property corners were located, so he offered a best-guess scenario until the property was actually surveyed. He needed to know the exact acreage in order to properly divide the property, which entailed obtaining a survey.

Rayburn suggested dividing Tract One into eight lots, with four small lots of equal size on the “arm” and four larger lots of equal size on the base. A road would be placed along the south boundary of the property, which would most impact the “arm” lots.

Tract Two

Potter Road goes in a north-south direction through Tract Two near its eastern edge. Roy appraised Tract Two as being worth $51,000. Lloyd appraised it for $148,000.

Rayburn suggested dividing Tract Two into four narrow lots of equal size with Potter Road running through the eastern side of each lot. An alternate offered by Rayburn was to have four smaller lots on one side of Potter Road and then four larger lots on the other side of Potter Road.

Tract Three

Hickory Nut Lane passes through the northwest corner of Tract Three, and Camp Zion Road goes through its northeastern corner. Oliver |7Road is parallel to the southern edge of Tract Three; however, Oliver Road is about 50 feet away from the southern boundary.

Roy testified that several people lived in the one acre of this tract that was separated from the remainder of the tract by Camp Zion Road. According to him, the upper right little triangle was so minuscule that he would suggest selling it to the adjoining landowners. Roy described the acreage as something of a junkyard with badly neglected improvements. Roy appraised Tract Three as being worth $200,500. Lloyd valued the tract at $435,000.

The differences in appraised values for the tracts can be largely explained by different approaches to comparables, or “comps,” taken by Lloyd and Roy. Lloyd utilized comps of more recent vintage to appraise the tracts, with no comp older than 3½ years, which was keeping in line with what he typically did for this type of property in this type of market. Roy considered it normal to use much older comps if they were similar and located nearby. He used comps as old as 9½ years to appraise Tract Three. Lloyd could not recall ever seeing an appraisal using comps that were dated 9 years. He explained that even in rural areas, lending institutions like to see a comp that is less than a year old. Lloyd allowed that the time frame for comps is within the discretion of the appraiser if the appraisal is not done for a bank or for a transaction backed by the government.

Rayburn suggested dividing Tract Three into two rectangular lots of equal size and two triangular lots of equal size. The rectangular lots would be in the western half of the tract, with one occupying the northwest quarter |sand the other the southwest quarter. The triangular lots would each have access to Camp Zion Road in one corner, and the northwest rectangle would have access to Hickory Nut Lane. In regard to the southwest lot, which lacked road access, Rayburn noted that there was a power line right-of-way alongside the southern edge of Tract Three. Rayburn asserted that this lot would have to gain access to a road either through an easement on the west line or through a right-of-way to Oliver Road. He noted there was nothing on the ground between Oliver Road and the 80-acre tract that would block such access.

Rayburn also testified that if some roads were built on Tract Three from Camp Zion Road, then the tract could be divided into as many lots as were needed. He would not offer a figure when asked at trial if he could value one of the proposed lots in Tract Three.

Tracts in toto

According to Roy, the Soil Conservation Handbook indicated the tracts were not suitable for brick homes. However, Roy felt that if there were a single owner and a road could be put through half of a tract to create one-acre lots, then the soil could support manufactured homes with septic systems and water wells on each acre. Still, Roy did not believe the tracts were economically conducive to residential development.

Roy explained that separating the tracts into smaller lots would not be economically feasible based on the number of owners, and that the tracts would have to be collectively rebuilt after a partition in kind to make them economically viable. Roy believed that each tract needed a single owner in | norder to develop a model that banks would support. He recognized that considering the number of owners, a partition in kind would lead to roads having to be built on the tracts, especially on Tract Three.

In Roy’s opinion, because of the existing limited routes for ingress and egress, each tract would need to be owned by one person, even if the tract were used only for timber management. Roy concluded that partitioning the property in kind would result in breaking up the tracts into meaningless lots that would become too difficult to develop. He also could not envision how it would be possible to divide the land into lots of equal value. His opinion would not change even if he took into account that the defendants were uninterested in developing the property and wanted only to retain it.

When Lloyd was asked if he was aware of the ownership interests involved in the dispute, he replied that he only knew what he had learned from listening to prior testimony. He originally thought the family had been squabbling among themselves, and he believed he had been uninformed about the extent of the ownership interests.

Lloyd did not take the ownership interests into account when appraising the property, so he did not determine whether the division of the properties would affect the value of individual lots. He did not offer proposed divisions of his own, and he largely ignored the proposed divisions presented to him by defendants as they were not included in his function as an appraiser in this matter. Lloyd was questioned about whether dividing Tract Three into four equal lots would increase, decrease, or not |inchange the value of each lot. He answered that it would depend on the lots’ road frontage and ability to be accessed.

When Lloyd was reminded of Roy’s testimony that it would be almost impossible to divide the tracts in order to come up with lots of the same value by acre, Lloyd stated that he tended to agree that it would be difficult to do so, although he would not say it would be impossible.

Rayburn admitted that when he came up with his suggested partitions, he was not looking at value, but instead at size and acreage. He used four owners as the basis for his suggested partitions because he had been told there were four main people or four main families, and that the four groups could then divide it up later. While he felt that a partition based on the ownership percentages into lots of nearly equal value could be accomplished, he did not attempt such a partition because he did not want to proceed until an actual survey was performed. Rayburn agreed that it would not be a good time in terms of the economy to divide the tracts into 100 lots, but he thought the tracts could be divided so that each owner could have his own piece of property. Rayburn did not believe there was anything about the nature of the property that would prevent it from being divided.

In its reasons for judgment, the trial court noted Roy’s testimony that as a result of the number of owners with varying interests and the lack of access to roads, dividing the property in kind was not feasible. Roy opined that a partition in kind would result in dividing the land into meaningless tracts and that it would be impossible to have tracts of equal value. The court recognized that while Lloyd’s appraisal differed substantially from _J_yRoy’s, Lloyd had conceded that a partition in kind would result in a diminution in value. It was also noted by the court that although Rayburn contended that a division in kind could be accomplished, he did not offer how it could be done without causing a diminution of value. In the end, the court gave great weight to Roy’s testimony, and to a lesser degree to Lloyd’s testimony, that a partition in kind would result in a diminution of value of the property.

After reviewing the testimony and evidence at trial, we cannot conclude that the trial court was clearly wrong in ordering a partition by licitation.

Appraisal

Douglas-Peters contends the trial court erred in not ordering the partition to be done with benefit of an appraisal.

Except as otherwise provided in La. C.C.P. art. 4606, the court has discretion to direct the manner and conditions of effecting the partition, so that it will be most advantageous and convenient to the parties. La. C.C.P. art. 4605.

This court has recognized that the unequal bidding power of the owners is a factor to be considered in determining the manner of partition. Tri-State Concrete Co. v. Stephens, 395 So.2d 894 (La.App. 2d Cir.1981). The plaintiffs own approximately 1,200 acres in the Haughton area. Mitchell, III, tried to buy Tract Two in its entirety at one point, but when not all of the co-owners would agree to the sale, he purchased an undivided |12interest in the tract so he could be aware of what was going on with the property.

The mere fact that the plaintiffs own substantial acreage in a rural setting is not enough to find unequal bidding power among the parties. The trial court did not abuse its discretion in ordering the partition to be done without benefit of an appraisal.

DECREE

At Douglas-Peters’ cost, the judgment is AFFIRMED.

      . Melissa Flores, who testified as an expert in the field of title examinations, was unsure of the division of ownership pertaining to Gilbert and Aytch. Gilbert conveyed an interest by joint-tenancy grant deed to Aytch in California. Flores was unfamiliar with joint-tenancies.

      . The plaintiffs asserted in the memorandum that while they initially sought a partition by licitation that was premised on the defendants being absentees, they were now seeking such a partition because dividing the property through a partition in kind would be detrimental to the individual ownership interests due to the location and characteristics of the property.