author: MOORE, J.

text:
    B.A. KELLY LAND CO., L.L.C. and Augton Co., L.L.C., Plaintiff-Appellants v. QUESTAR EXPLORATION AND PRODUCTION COMPANY, et al., Defendant-Appellees.
    No. 47,509-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.
    Rehearing Denied Jan. 10, 2013.

      Davidson, Jones & Summers, APLC, Shreveport, LA, by Randall Stephen Davidson, Grant Ernest Summers, Wm. Lake Hearne, Jr., for Appellants B.A. Kelly Land Co., L.L.C. and Augton Co., L.L.C.
    Jones, Walker, Waechter, Poitevent, Carrére & Denégre, by Michael Beatty Donald, Nicole Duarte, Claudia Rivas-Mol-loy, for Appellees QEP Energy Co., et al.
    Bradley, Murchison, Kelly & Shea, by Joseph L. Shea, Jr., Katherine Smith Baker, Shreveport, LA, Natalie Dekaris, New Orleans, LA, for Appellees Atlanta Exploration Co., et al.
    Sinclair Law Firm, LLC, Shreveport, LA, by Scott C. Sinclair, for Amici Curiae Robert Wesley Addison, et al.
    Before DREW, MOORE and SEXTON (Pro Tempore), JJ.

      . "6. If Lessee obtains production of minerals on said land or on land with which the lease premises or any portion thereof has been pooled, and if, during the life of this lease either before or after the expiration of the primary term, all such production is shut in by reason of force majeure or the lack either of a market at the well or wells or of an available pipeline outlet in the field, this lease shall not terminate but shall continue in effect during such shut-in period as though production were actually being obtained on the premises within the meaning of paragraph 2 hereof, and, during the month of January of each year immediately succeeding any year in which a shut-in period occurred when all such production was shut in, Lessee shall pay or tender, by check or draft of Lessee, as royalty, one-twelfth (1/12) of the amount of the delay rental * * * for each full calendar month in the preceding calendar year that the lease was continued in force solely and exclusively by reason of the foregoing provisions of this paragraph. * * * ”

   MOORE, J.

LThe lessors, B.A. Kelly Land Co. and Augton Co., filed this suit in 2009 to declare a 1971 mineral lease automatically terminated due to the lessees’ failure to produce or perform operations for 11 months in 1988 and 1989. The district court sustained the lessees’ exceptions of prematurity and no cause of action based on the “judicial ascertainment” clause in the lease, and dismissed the suit without prejudice. The lessors now appeal. For the reasons expressed, we affirm in part, amend in part and remand.

Factual Background

In October 1971, Dorothy Richardson granted an oil, gas and mineral lease to PAR Oil (“the PAR lease”), covering a 40-acre tract in Elm Grove Field, Sec. 31, T17N, R11W, Bossier Parish. The lease was for a primary term of two years, with a habendum clause and shut-in clause. Crucial to this case, the lease also contained a judicial ascertainment clause:

13. After production of oil, gas, sul-phur or other mineral has been secured from the land covered hereby or land pooled therewith, this lease shall not be subject to forfeiture or loss, either in whole or in part, for failure to conduct operations in compliance with this contract except after judicial ascertainment that Lessee has failed to conduct such operations Land has been given a reasonable opportunity after such judicial ascertainment to prevent such loss or forfeiture by complying with and discharging its obligations as to which Lessee has been judicially determined to be default. * * *

An operator, Mobley, acquired an interest in the PAR lease and, in 1974, drilled the Mims # 1 well on land unitized with the lease tract. According to documents filed in this case, Mims # 1 was completed in January 1975 and remains a producing well to date.

In the 1990s, Mrs. Richardson donated the lease tract to her son, who later conveyed the mineral rights to the plaintiffs, B.A. Kelly Land Co. and Augton Co. Through other conveyances, Questar Exploration, Atlanta Exploration and 16 other entities acquired leasehold interests in the lease; in 1996, Questar Exploration became the operator of the unitized Sec. 31, in which this tract sits. Questar Exploration is now known as QEP.

In November 2009, B.A. Kelly and Aug-ton filed this suit seeking a declaration that the PAR lease was automatically terminated because over two periods, November 1988-January 1989 and June-October 1989, no minerals were produced, and from November 1988 to October 1989 no operations of any kind were performed, on the lease tract or on lands pooled with it. The lessors named QEP, the current operator, and the 17 other leaseholders as defendants. They alleged that Mrs. Richardson was never advised of the cessation of production or operations, as required by La. R.S. 31:102, and there was no lack of market or unavailability of a pipeline outlet sufficient to trigger the shut-in clause; hence, the lease “terminated automatically by occurrence of a resolutoiy condition, specifically the cessation of production in paying quantities.” They demanded a declaration |sthat the PAR lease was terminated; costs, attorney fees and damages; removal of all facilities from the lease tract; and an accounting.

On December 21, 2009, attorney Mike Donald filed an answer on behalf of all defendants. The answer mostly denied all allegations; under the heading of “Affirmative and Other Defenses,” it asserted that the petition failed to state a claim on which relief may be granted because “Plaintiffs have not met all conditions precedent to seek cancellation of a mineral lease.” The answer also included a recon-ventional demand for reimbursement of all facilities and costs, in the event the PAR lease was terminated.

On January 13, 2010, attorney Joseph Shea, on behalf of Atlanta Exploration and 10 other defendants, filed a motion to strike Mr. Donald’s answer. These defendants (now referred to as “the Atlanta defendants”) attached affidavits swearing that they had retained Mr. Shea to represent them, but that Mr. Donald erroneously filed an answer naming them as his clients. They sought a rule to show cause and leave of court to file their own exceptions (including a dilatory exception of prematurity) and answer.

The plaintiffs did not object to letting the Atlanta defendants file a new answer, but strongly argued that they could not revive the dilatory exception of prematurity that Mr. Donald had waived by filing an answer. After a hearing on April 19, the district court granted the Atlanta defendants leave to file exceptions and an answer, but ruled that the others (now referred to as “the QEP defendants”) could not.

|4The Atlanta defendants filed their exceptions and answer, specifically a dilatory exception of prematurity, urging that the plaintiffs had not yet obtained a judicial ascertainment under ¶ 13 of the PAR lease that the lessee failed to conduct operations and was given a reasonable opportunity to prevent the forfeiture or loss. They also denied the plaintiffs’ allegations and asserted a reconventional demand similar to the QEP defendants’.

Later, the QEP defendants filed an amended answer, reiterating the “affirmative defense” that the plaintiffs had not met the conditions precedent to seek cancellation of the lease. They also filed a motion for summary judgment (as did the Atlanta defendants and the plaintiffs). Filings in support of and opposition to these motions showed that Mrs. Richardson received no royalty checks for the 8 months in 1988 and 1989, and by affidavit she stated that she was never notified that the well was shut in; thus the plaintiffs felt they were entitled to judgment that the lessees ceased production, effecting the automatic termination of the lease.

All defendants conceded that Mrs. Richardson received no royalty checks for the months in question, but argued that the natural gas market collapsed in late 1988, leading their exclusive buyer, Arkla, to halt gas purchases; the operator at the time, Mobley, went bankrupt as a result; his bankruptcy estate eventually received a settlement from Arkla, of which a proportionate share ($471.01) was sent to Mrs. Richardson in November 1993, and she cashed the check. They argued that these facts showed they did not simply cease production, such as would automatically terminate the lease under La. R.S. 81:124 and provisions of the PAR lease.

|fiThe Atlanta defendants reasserted their dilatory exception of prematurity based on the lessors’ failure to get a judicial ascertainment. They also argued that any claim for unpaid royalties prescribed in three years under La. C.C. arts. 3494(5) and 3495.

Action of the District Court

At a hearing on motions on December 12, 2011, the Atlanta defendants argued their exception of prematurity and the QEP defendants argued that the plaintiffs’ failure to seek judicial ascertainment could be raised as a peremptory exception of no cause of action. The plaintiffs argued, in essence, that if the lease was automatically terminated, then the judicial ascertainment clause was null and void.

The court ruled from the bench that the matter was premature. It rendered judgment sustaining the Atlanta defendants’ exception of prematurity and dismissing all claims against them, and dismissing all claims against the QEP defendants as premature. The judgment declared both dismissals without prejudice, but barred the plaintiffs from amending their petition to assert a claim for judicial ascertainment.

The plaintiffs have appealed, raising three assignments of error.

Discussion: Representation of the Atlanta Defendants

By their first assignment of error, the plaintiffs urge the court erred in sustaining the exception of prematurity since all defendants waived any dilatory exceptions through the answer filed in December 2009. The dilatory exception must be pleaded “prior to or in the answer,” La. C.C.P. art. 928 A, or else it is waived. Barrie v. V.P. Exterminators Inc., 625 So.2d 1007 (La.1993). Mr. Donald’s answer, filed in December 2009 on behalf of all defendants, contained no dilatory exceptions; hence, these were waived. Moreover, the Atlanta defendants did not establish that Mr. Donald lacked the authority to represent them when he filed an answer. An attorney who appears to represent a party is presumed to have authority. Holloway v. City of Alexandria, 506 So.2d 234 (La.App. 3 Cir.1987).

The Atlanta defendants respond that the district court received and read affidavits whereby each entity swore that it did not retain Mr. Donald as its attorney, and this was sufficient to support the ruling.

The relationship between an attorney and his client is purely contractual in nature and results only from a clear and express agreement between the parties. Weinstein v. Weinstein, 2010-1083 (La.App. 3 Cir. 4/13/11), 62 So.3d 878; Spicer v. Gambel, 00-1995 (La.App. 4 Cir. 6/20/01), 789 So.2d 741. Establishment of an attorney-client relationship is adequately proven when it is shown that the advice and assistance are sought and received in matters pertinent to the attorney’s profession or when the agreement of representation has been made under conditions acceptable to both parties. Weinstein v. Weinstein, supra, and citations therein. An attorney-client relationship cannot exist in the absence of any initial communication, either verbal, written or otherwise, between the attorney and the client. Spi-cer v. Gambel, supra, and citations therein. Courts have the inherent power to regulate the practice of law. Hodges v. Reasonover, 2012-0043 (La.7/2/12), 103 So.3d 1069; Stonetrust Comm’l Ins. Co. v. George, 46,560 (La.App. 2 Cir. 11/23/11), 81 So.3d 9.

|7Each of the Atlanta defendants filed an affidavit whereby its manager or president swore that he retained Mr. Shea, not Mr. Donald, as its counsel; he never saw or approved the answer drafted by Mr. Donald until after it was filed; he never consented to the waiver of any defenses by filing an answer; and he never subjectively believed that he was in an attorney-client relationship with Mr. Donald. There was no evidence to the contrary. On this record, the district court was entitled to find that Mr. Donald did not represent the Atlanta defendants. Spicer v. Gambel, supra. As part of its inherent authority to regulate the practice of law, the court did not abuse its discretion in granting the Atlanta defendants leave of court to file an answer and exceptions through their chosen attorney, Mr. Shea. This assignment of error lacks merit.

The QEP Defendants’ Exception of No Cause of Action

By their second assignment of error, the plaintiffs urge the court erred in sustaining the exception of prematurity as to the QEP defendants, who did not assert the dilatory exception. The plaintiffs reiterate that the QEP defendants waived this exception by filing an answer, and contend that a court cannot on its own motion enter an exception of no cause of action based on a theory that the claim is premature. Moreno v. Entergy Corp., 2010-2268 (La.2/18/11), 64 So.3d 761.

The Atlanta defendants respond that the court may indeed treat a party’s failure to comply with a contractual provision as grounds for no cause of action. Rebstock v. Birthright Oil & Gas Co., 406 So.2d 636 (La.App. 1 Cir.), writ denied, 407 So.2d 742 (1981); Rivers v. Sun Exploration & Prod. Co., 559 So.2d 963 (La.App. 2 Cir. 1990). The QEP defendants submit that they adequately asserted the plaintiffs’ failure to comply with the judicial ascertainment clause to support the judgment.

The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Credit v. Richland Parish School Bd., 2011-1003 (La.3/13/12), 85 So.3d 669; Veroline v. Priority One EMS, 2009-1040 (La.10/9/09), 18 So.3d 1273. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. By contrast, the dilatory exception of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination. Williamson v. Hospital Serv. Dist. No. 1, 2004-0451 (La.12/1/04), 888 So.2d 782; Roark v. Liberty Healthcare Systs. LLC, 44,913 (La.App. 2 Cir. 12/9/09), 26 So.3d 968, writ denied, 2010-0390 (La.4/23/10), 34 So.3d 265. The supreme court recently held that these are two separate lines of inquiry, and it is error for a court to conflate them. Moreno v. Entergy Corp., supra.

The primary objective of the rules of procedure is to secure to all parties the full measure of their substantive rights. Unwired Telecom v. Parish of Calcasieu, 2003-0732 (La.1/19/05), 903 So.2d 392, and citations therein. Procedural rules exist for the sake of substantive law and to implement substantive rights, not as an end in and of themselves. La. C.C.P. art. 5051; Unwired Telecom v. Parish of Calcasieu, supra; Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983). The aim of pleading is to |9show that the court is vested with subject matter jurisdiction in the case, to set forth the bounds to a controversy, and to allow the parties to explore the issues within the bounds of the controversy. Unwired Telecom v. Parish of Calcasieu, supra.

In Unwired Telecom, supra, the supreme court held that even though the defendant failed to allege the unconstitutionality of a statute in a formal pleading in the appellate court, as required by jurisprudence, its argument in brief met the primary objective of procedural rules by fully illumining the substantive legal question and focusing attention on the constitutional issue. Hence, the court would consider the issue.

The same reasoning applies to the instant case. The plaintiffs alleged the existence of a mineral lease and sought automatic termination thereof due to a breach of certain provisions of the lease. The QEP defendants’ answer showed that another provision of the lease required a judicial ascertainment before the lease could be subject to forfeiture or loss; later, they framed their position as an exception of no cause of action. Their position is somewhat inartfully stated and blurs the distinction between the dilatory exception of prematurity and the peremptory exception of no cause of action. Moreno v. Entergy Corp., supra. However, it is minimally sufficient to set forth the bounds of the controversy and focus the court’s attention on the trae issue — whether dissolution may be granted before a judicial ascertainment is obtained. Un-wired Telecom, supra.

This approach is not unprecedented in mineral lease litigation. In Rebstock v. Birthright Oil & Gas, supra, the plaintiff sued to declare | inmineral leases terminated because of the lessees’ failure to pay certain royalties as required by the leases. The lessees countered that the plaintiff failed to provide notice of nonpayment, as required by R.S. 31:137, 138. The court sustained an exception of no cause of action, in essence because of the plaintiffs failure to comply with the statute. The court did not mention the potential application of an exception of prematurity, but found the petition insufficient to state a cause of action.

Under the circumstances presented in this case, and the guidance of Unwired Telecom and Rebstock, we find the district court did not err in reading the substance rather than the caption of the QEP defendants’ affirmative defenses and in considering whether the plaintiffs needed to obtain a judicial ascertainment. We are mindful of the supreme court’s recent admonition in Moreno v. Entergy Corp., supra, against conflating the notions of prematurity and no cause, but note that in Moreno, the exception of no cause “had not been raised by any party[,]” leading the court to hold that “the court of appeal erred in supplying it on its own motion.” Id. at 763. In the instant case, the QEP defendants did indeed raise the exception of no cause on the issue of judicial ascertainment. On this record, the district court did not err in considering the substance of the QEP defendants’ argument. This assignment lacks merit.

Application of Judicial Ascertainment Clause

By their third assignment of error, the plaintiffs urge the court erred on the merits in finding that ¶ 13’s “cure” provision applied to the automatic termination of the lease for failure to produce. For purposes of the dilatory | ¶1 exception, the court must accept the factual allegations of the petition as true. La. C.C.P. art. 930. The petition alleged that no production occurred between November 1988-January 1989 and June-October 1989. A mineral lease terminates at the expiration of the agreed term or upon the occurrence of an express resolutory condition. La. R.S. 31:133. The plaintiffs contend that cessation of production is a resolutory condition that automatically terminates the lease. Frankel v. Exxon Mobil Corp., 2004-1236 (La.App. 1 Cir. 8/10/05), 923 So.2d 55; Amoco Prod. Co. v. Carruth, 512 So.2d 571 (La.App. 1 Cir.1987), writ denied, 516 So.2d 366 (1988); Trinidad Petroleum Corp. v. Pioneer Natural Gas Co., 416 So.2d 290 (La.App. 3 Cir.), writ denied, 422 So.2d 154 (1982). Further, under La. R.S. 31:124, when a mineral lease expires for lack of production under the habendum clause, it terminates automatically without any need for putting in default. The judicial ascertainment clause is a “notice and cure” provision that does not apply when the lease terminates automatically for cessation of production. Taylor v. Kimbell, 219 La. 731, 54 So.2d 1 (1951); Sittig v. Dalton, 195 La. 765, 197 So. 423 (1940); Logan v. Blaxton, 71 So.2d 675 (La.App. 2 Cir.), writ denied (not reported, 1954). In essence, the automatic termination erases the judicial ascertainment clause. Smith v. Sun Oil Co., 172 La. 544, 135 So. 15 (1931). The plaintiffs conclude that “a long line of Louisiana cases,” cited in Williams & Meyers, Oil & Gas Law, 4 ed. § 682.2 (Lexis-Nexis, ©2011), holds notice and cure clauses inapplicable to the habendum clause in a mineral lease.

They further argue that construing ¶ 13 to forestall automatic termination is contrary to public policy limiting the term of leases without operation, La. R.S. 31:115, and other states have rejected judicial ascertainment clauses as contrary to public policy. They contend that a similar clause was found inapplicable in Melancon v. Texas Co., 230 La. 593, 89 So.2d 135 (1956), where the court rejected the lessee’s reliance on it as “anomalous, if not ridiculous.” Finally, a lease that terminates for failure to produce cannot be “revived” by later production. Amoco Prod. Co. v. Carruth, supra; Mobil Oil Exploration & Prod. Southeast v. Latham Exploration Co., 44,-996 (La.App. 2 Cir. 2/3/10), 31 So.3d 1149. They conclude the judgment should be reversed and the case remanded for further proceedings.

The Atlanta defendants respond that judicial ascertainment is the law between the parties, who may agree that automatic termination cannot occur without first getting a judicial ascertainment. Smith v. Sun Oil Co., 165 La. 907, 116 So. 379 (1928). Although Melancon v. Texas Co., supra, resulted 11sin cancellation of the lease, the supreme court recognized the validity of the clause. They argue there is no public policy in Louisiana against judicial ascertainment clauses, and foreign jurisprudence is not persuasive. Moreover, the plaintiffs cannot assume the lease is terminated simply to circumvent the clause; a court must determine whether the lessee breached the lease by failing to produce. McDowell v. PG&E Resources Co., 26,321 (La.App. 2 Cir. 6/23/95), 658 So.2d 779, writ denied, 95-1847 (La.11/3/95), 661 So.2d 1382. The Atlanta defendants submit that a judicial ascertainment is not only contractually mandated but advisable on this complex record, and the judgment should be affirmed.

The QEP defendants argue that Melan-con v. Texas Co., supra, recognizes the judicial ascertainment clause as an accepted contractual mechanism to avoid lease termination when a bona fide dispute exists, and that the clauses in the early Smith v. Sun Oil Co. cases were critically different from ¶ 13, applying only if production in paying quantities was established. They suggest that the result in Melancon was correct because there was no bona fide dispute; here, however, there is a dispute — whether the events .of 1988-'90 were a “cessation of production,” as claimed by the plaintiffs, or a “pipeline curtailment,” as claimed by the lessees— and hence the clause applies. Finally, judicial ascertainment is not against public policy, as “nothing in Louisiana law prevents long-term leasing following production, as in the present case.”

In the absence of a violation of law or public policy, the mineral lease constitutes the law between the parties and regulates their respective rights 114and obligations. La. R.S. 31:3; Caskey v. Kelly Oil Co., 98-1193 (La.6/29/99), 737 So.2d 1257, 143 Oil & Gas Rep. 32; Adams v. JPD Energy Inc., 45,420 (La.App. 2 Cir. 8/11/10), 46 So.3d 751, writ denied, 2010-2052 (La.11/12/10), 49 So.3d 892. Mineral leases are construed as leases generally; the provisions of the Civil Code applicable to ordinary leases, when pertinent, are applied to mineral leases. Caskey v. Kelly Oil Co., supra. When the words of a mineral lease are clear and explicit and do not lead to absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046; Caskey v. Kelly Oil Co., supra. Each provision of 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; Franks Petroleum Inc. v. Mayo, 438 So.2d 696 (La.App. 2 Cir.), writ denied, 443 So.2d 595 (1983).

The PAR lease plainly includes ¶ 13: once production has been secured, the lease “shall not be subject to forfeiture or loss” for failure to conduct operations “except after judicial ascertainment that Lessee has failed to conduct such operations” and been given an opportunity to prevent such forfeiture or loss. This provision is the law between the parties; it will be enforced unless modified or negated by other provisions of the lease or contrary to law or public policy.

A mineral lease terminates upon the occurrence of an express resolu-tory condition. La. R.S. 31:138. When a mineral lease is being maintained by production of oil or gas, the production must be in paying quantities. La. R.S. 31:124. Even though production continues beyond the |1sprimary term, the term of the lease may expire and the contract be automatically dissolved if production is not in paying quantities. Id., editor’s notes; Noel Estate Inc. v. Murray, 223 La. 387, 65 So.2d 886 (1953). Many cases hold that leases, which were extended by production under the habendum clause, are automatically cancelled for the lessee’s failure to produce in paying quantities. See, e.g., Smith v. Sun Oil Co., 172 La. 655, 135 So. 15 (1931); Pace Lake Gas Co. v. United Carbon Co., 177 La. 529, 148 So. 699 (1933); Landry v. Flaitz, 245 La. 223, 157 So.2d 892 (1963).

To ameliorate the harsh consequence of termination, lessees introduced the shut-in clause. Patrick S. Ottinger, “Neither Fish Nor Fowl: The Louisiana Law of Shut-In Gas Wells,” 69 La. L.Rev. 43 (2008). This contractual innovation specifies circumstances in which the mineral lease might be maintained, in the absence of some other basis of maintenance, if a well is drilled and is capable of producing but is not in fact producing for a reason envisioned by the lease clause. Id. at 50. In our view, the provision for judicial ascertainment is another contractual innovation to ameliorate or forestall the harsh consequence of automatic termination.

In Melancon v. Texas Co., supra, the lease included a judicial ascertainment clause substantially similar to ¶ 13. During the primary term, Texaco paid delay rentals until it drilled a productive gas well on land |1fiunitized with the lease tract; about a month later, however, Texaco shut in the well and tendered minimal shut-in payments to the lessor. The lessor met and exchanged letters with Texaco for the next 13 months; it transpired that Texaco was intentionally withholding rentals in an effort to coerce the lessor to agree to increasing the size of the production unit. The lessor finally sued to cancel the lease; Texaco raised, inter alia, the defense of the judicial ascertainment clause. The district court granted cancellation, ruling that the clause “relates to the judicial ascertainment of facts, conditions or circumstances that are the subjects of a bona fide dispute and as to which there is a real disagreement in good faith[.]” The supreme court affirmed:

We think the trial judge correctly ruled that the provisions concerning judicial ascertainment apply to a bona fide dispute as to which there is a real disagreement in good faith between the parties * * *. To hold as contended by counsel for defendant on this point would lead to an anomalous, if not ridiculous, situation, for the lessor would be at the mercy of the lessee; the latter might employ whatever tactics he saw fit to obtain concessions or alterations in connection with the lease, knowing it would never be declared cancelled without his first being given the opportunity to comply after judicial proceedings. Id. at 624, 89 So.2d at 146.

Critically, the supreme court upheld the validity of the judicial ascertainment clause, but refused to enforce it on the showing of the lessee’s intentional conduct, the lack of a bona fide dispute, and the lessor’s multiple requests to resume production. The high court’s approval of the clause obviously supersedes earlier cases holding that “notice and cure” clauses — notably, those not calling for judicial ascertainment — were null when a lease automatically terminated for cessation of production. Taylor v. Kimbell, supra; Sittig v. Dalton, supra; Logan v. Blaxton, supra; Producers Oil & Gas Co. v. Continental Sec. Corp., 188 La. 564, 177 So. 668 (1987).

In the instant case, the parties agree that the lessee failed to produce over eight months, and failed to perform any operations over 12 months, in 1988 and 1989; however, the defendants raise the bona fide claim that this was a result of market conditions, Arkla’s breach of contract with the lessee, and whether these facts constituted a “force majeure or the lack * * * of a market at the well or wells” such as would maintain the lease under the shut-in clause. Under these facts, the defendants are entitled to judicial ascertainment under ¶ 13 of the PAR lease before any judgment declaring the lease cancelled.

Finally, the plaintiffs argue that even if the judicial ascertainment clause is not modified or negated by other provisions of the lease, it cannot be enforced because it is contrary to law or public policy. The Mineral Code states that a lease “shall not be continued for a period of more than ten years without drilling or mining operations or production.” La. R.S. 31:115 A. The payment of shut-in royalties preserves the valid extension of the lease against forfeiture. Lelong v. Richardson, 126 So.2d 819 (La.App. 2 Cir. 1961). Given the bona fide dispute over whether the lessee’s conduct in 1988 and 1989 satisfied the conditions of the haben-dum clause and shut-in clause for maintaining the lease, we will not declare that the judicial | ^ascertainment clause violates R.S. 31:115. We are also unpersuaded by the citation to jurisprudence of other states. The stated rationale in cases like Wellman v. Energy Resources Inc., 210 W.Va. 200, 557 S.E.2d 254 (2001), is the “public policy against repeated litigation over the same issues.” The PAR lease has not been the subject of repeated litigation; we see no violation of public policy.

This assignment of error lacks merit.

Leave of Court to Amend

In their prayer for relief, the plaintiffs ask this court to remand the case for further proceedings. Similarly, the amici curiae urge the court to focus not on the merits but on the procedure of the case: whether the claim is ripe for determination. LaCoste v. Pendleton Methodist Hosp., 2007-0008 (La.9/5/07), 966 So.2d 519. They urge that all defendants asserted facts sufficient to place compliance with ¶ 13 at issue, and hence the court is obligated to make a judicial ascertainment.

At oral argument, counsel for the QEP defendants suggested that the court could prohibit the plaintiffs from amending their petition because the remedy of judicial ascertainment was “inconsistent” with the original claim for termination of the lease.

The district court sustained a dilatory exception of prematurity and a peremptory exception of no cause of action. When the grounds of the objections pleaded in the dilatory exception may be removed by amendment of the petition or other action, “the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court[.]” La. 1 lflC.C.P. art. 933 B. Leave to amend is also the rule when the grounds of a peremptory exception may be cured. La. C.C.P. art. 934. The petition and exceptions have clearly placed at issue the need for a judicial ascertainment in accord with ¶ 13 of the PAR lease.

We do not see the original claim for termination of the PAR lease as “inconsistent” with a claim for judicial ascertainment under ¶ 13; they appear to be two steps in the same process. Nevertheless, a petition may set forth two or more causes of action in the alternative, “even though the legal or factual bases thereof may be inconsistent or mutually exclusive.” La. C.C.P. art. 892; Alexis v. Metropolitan Life Ins. Co., 604 So.2d 581 (La.1992). In view of the liberal rule for amendment under Arts. 933 and 934, this court will amend the judgment to give the plaintiffs 30 days from the date of finality of this judgment to amend their petition to add a claim for judicial ascertainment. The case will be remanded for further proceedings.

Conclusion

For the reasons expressed, the judgment is affirmed insofar as it sustained the exceptions of prematurity and no cause of action. It is amended, however, to grant the plaintiffs 30 days from the date of finality of this judgment to amend their petition to add a claim for judicial ascertainment. The case is remanded for further proceedings.

All costs are to be assessed at the conclusion of the case.

AFFIRMED IN PART, AMENDED IN PART AND REMANDED.

APPLICATION FOR REHEARING

Before DREW, LOLLEY, MOORE, PITMAN and SEXTON (Pro Tempore), JJ.

Rehearing denied.

      . "2. Subject to the other provisions herein contained, this lease shall be for a period of two years from this date (called "primary term”) and as long thereafter as (1) oil, gas, sulphur or other mineral is produced from said land hereunder or from land pooled therewith; or (2) it is maintained in force in any other manner provided herein.”

      . "7. This lease will continue in full force and effect within or beyond the primary term as long as any mineral is produced from said land hereunder or from land pooled therewith. * * * ”

      . “§ 124. Production in paying quantities required; definition
      "When a mineral lease is being maintained by production of oil or gas, the production must be in paying quantities. It is considered to be in paying quantities when production allocable to the total original right of the lessee to share in production under the lease is sufficient to induce a reasonably prudent operator to continue production in an effort to secure a return on his investment or to minimize any loss.
      "As to all other minerals, it is sufficient if a reasonably prudent operator would continue production considering the particular circumstances in the light of the nature and customs of the industry involved. In appropriate cases, such as the mining of lignite, a court may consider the total amount of production allocable to the mining plan or project of which a particular lease is a part, rather than merely the amount of production from that lease.”

      . "§115. Requirement of term; limitation of continuation without drilling or mining operations
      "A. The interest of a mineral lessee is not subject to the prescription of nonuse, but the lease must have a term. Except as provided in this Article, a lease shall not be continued for a period of more than ten years without drilling or mining operations or production. Except as provided in this Article, if a mineral lease permits continuance for a period greater than ten years without drilling or mining operations or production, the period is reduced to ten years. * * * ”

      . The lease in Melancon provided: "After production of oil, gas, sulphur or other mineral has been secured from the land covered hereby, this lease shall not be subject to forfeiture or loss, either in whole or in part, except after judicial ascertainment that the Lessee has failed to perform and discharge its obligations hereunder and has been given a reasonable opportunity thereafter to prevent such loss or forfeiture by complying with and discharging its obligations as to which Lessee has been judicially determined to be in default.”

      . This court observes that with different lease provisions, a lessee's failure to pay royalties may override a "notice and cure” clause and result in automatic termination. Such was the result in Stream Family Ltd. Partnership v. Marathon Oil Co., 2009-561 (La.App. 3 Cir. 12/23/09), 27 So.3d 354, 172 Oil & Gas Rep. 489, writ denied, 2010-0196 (La.4/16/10), 31 So.3d 1064, where the lease stated: "Untimely or improper payment for royalties shall constitute an express resolutory condition of this lease with respect to LESSEE’S rights. * * * In the instance of willfully or persistently late or improper payments, LESSOR need not give such notice and the lease shall resolve immediately.”


source: Caselaw Access Project

author: ROBERT A. CHAISSON, Judge.

license: Public Domain

text:
    Al HARNEY, et al. v. LOUISIANA CITIZENS PROPERTY INSURANCE COMPANY.
    No. 12-CA-177.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2012.
    Rehearing Denied Dec. 27, 2012.

      Sidney D. Torres, III, Roberta L. Burns, Beau F. Camel, Attorneys at Law, Chalmette, LA, for Plaintiff/Appellant.
    Darren A. Patín, Christopher M. G’Sell, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERTA. CHAISSON.
   ROBERT A. CHAISSON, Judge.

|2In this action, plaintiffs have sued their homeowners’ insurer, Louisiana Citizens Property Insurance Corporation (“Citizens”), for claims arising from Hurricane Katrina". Plaintiffs appeal from a judgment of the trial court sustaining the defendant’s exception of prescription. For the following reasons, we affirm the judgment in part, reverse it in part, and remand the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On August 29, 2005, Hurricane Katrina struck the Gulf Coast causing extensive damage and destruction to the region. Subsequently, numerous lawsuits proposing class certification were filed in Louisiana, a number of which named Citizens as a defendant. Some of these class actions have been resolved, and some of them are still pending in various procedural postures in various courts.

| ¡¡On May 26, 2011, eleven individuals who own property in Jefferson Parish filed this lawsuit against Citizens. In their petition, plaintiffs alleged that they were putative class members of at least one pending class action against Citizens, and as such, were entitled to the benefit of suspension of prescription pursuant to La. C.C.P. art. 596. On August 2, 2011, Citizens filed an answer to the petition along with an exception of prescription and various other exceptions. In its exception of prescription, Citizens contended that plaintiffs filed this lawsuit subsequent to both the extended filing deadline established by the Louisiana Legislature in Act 802 of 2006, and the deadline established by the Louisiana Supreme Court in Taranto vs. Louisiana Citizens Property Insurance Corporation, 10-0105 (La.3/15/11), 62 So.3d 721. In their opposition to Citizen’s exception of prescription, plaintiffs specifically identified five timely filed class actions in which they claimed to be putative class members: Christenberry v. Louisiana Citizens Property Insurance Corporation, No. 2006-8819 of Civil District Court for the Parish of Orleans; Oubre v. Louisiana Citizens Fair Plan, No. 625-567 of the 24th JDC; Orrill v. AIG, Inc., No. 2005-0888 of the Civil District Court for the Parish of Orleans; Press v. Louisiana Citizens Fair Plan Property Insurance Corporation, No. 2006-5530 of Civil District Court for the Parish of Orleans; and The State of Louisiana v. AAA Ins., No. 07-5528 of the Eastern District of Louisiana (the “Road Home” litigation). Plaintiffs further contend that the filing of the “Road Home” litigation by the State of Louisiana, as partial subrogee to the rights of any recipient of a “Road Home” grant, interrupted prescription as to the claim of that grant recipient. |4In response, Citizens contended that by filing their independent individual lawsuit, plaintiffs effectively “opted out” of the class actions upon which they relied for purposes of suspension of prescription, and forfeited the benefit of suspension of prescription provided by La. C.C.P. art. 596.

After a hearing on November 3, 2011, the trial court rendered judgment sustaining Citizen’s exception of prescription. It is from this judgment that plaintiffs now appeal.

LAW AND ANALYSIS

In Louisiana, class actions are governed by La. C.C.P. art. 591 et seq. Article 596 provides, in pertinent part:

A. Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein. Prescription which has been suspended as provided herein, begins to run again:
(1) As to any person electing to be excluded from the class, thirty days from the submission of that person’s election form;
(2) As to any person excluded from the class pursuant to Article 592, thirty days after mailing or other delivery or publication of a notice to such person that the class has been restricted or otherwise redefined so as to exclude him; or
(3) As to all members, thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed, that the demand for class relief has been stricken pursuant to Article 592, or that the court has denied a motion to certify the class or has vacated a previous order certifying the class.

Citizens first contends that, despite the suspension of prescription provided for in Article 596, the Louisiana Supreme Court, in Taranto, established a definitive filing deadline of May 31, 2009, for all claims arising from Hurricane Katrina, and that plaintiffs’ lawsuit, filed May 26, 2011, was therefore untimely. Citizens misinterprets the ruling in Taranto. In Taranto, the plaintiffs responded to |fian exception of prescription by alleging that they were putative class members of two class actions, Buxton v. Louisiana Citizens Property Ins. Corp., No. 2006-8341 on the docket of the Civil District Court for the Parish of Orleans, and Chalona v. Louisiana Citizens Property Ins. Corp., 08-0257 (La.App. 4 Cir. 6/11/08), 3 So.3d 494, and were therefore entitled to the suspension of prescription provided by those two class actions pursuant to La. C.C.P. art. 596. The Supreme Court, applying the precepts of Article 596 to the facts of those particular class actions, found that the filing deadline for the plaintiffs in Taranto was May 31, 2009. The Court’s ruling did not preclude the possibility that other timely filed, pending Katrina-related class actions, in different procedural postures than Buxton and Chalona, might be relied on by other plaintiffs pursuant to La. C.C.P. art. 596, thus providing a filing deadline beyond May 31, 2009. Since plaintiffs in the litigation before us do not rely upon the Buxton or Chalona class actions, that portion of the Supreme Court’s ruling in Taranto establishing a filing deadline of May 31, 2009, is not relevant to our inquiry.

Citizens next contends that even if the Taranto filing deadline of May 31, 2009, is not controlling, plaintiffs, by filing this independent individual lawsuit, have effectively “opted out” of the five class actions upon which they rely, and have forfeited the benefit of suspension of prescription provided by those class actions.

The Louisiana Supreme Court recently granted certiorari in two cases to consider whether the suspension of prescription provided for in La. C.C.P. art. 596 extends to a putative class member who files an individual claim (1) prior to a ruling on the class certification issue (Duckworth v. Louisiana Farm Bureau Mutual Insurance Company, 11-2835 (La.11/02/12), — So.3d -), and (2) after a ruling on the class certification issue (Quinn v. Louisiana Citizens Property Insurance Corporation, 12-0152 (La.11/02/12), — So.3d -). The Supreme Court’s rulings in both Duckworth and Quinn are relevant to our inquiry since plaintiffs in the instant litigation rely upon timely filed class actions where there is no final ruling on the class certification issue (Christenberry, Or-rill, and the “Road Home” litigation) and timely filed class actions where there has been a final ruling on the class certification issue (Oubre and Press).

According to the plain language of La. C.C.P. art. 596, a petition brought on behalf of a class suspends prescription as to “all members” of the class “as described or defined therein.” Duckworth, 11-2835 at 14, — So.3d-. This suspension continues until thirty days after one of three events occurs: (1) a person elects to be excluded from the class by submitting an election form; (2) a person is excluded from the class by the redefinition or restriction of the class (and notice thereof is issued); or (3) the action is dismissed, the demand for class relief is stricken, or class certification is revoked or refused (and notice thereof issued). Id. These three events are the exclusive statutory triggers for recommencing the accrual of liberative prescription on the claims of those persons described or defined in the class action petition. Id. at 14-15, — So.3d -. Consequently, the Supreme Court held that “the filing of an individual lawsuit, regardless of its timing, is not an avenue for ‘opting out of or requesting exclusion from a class and, thus, not a trigger for recommencing the running of liberative prescription under La. C.C.P. art. 596 or for forfeiting the benefits of suspension provided thereunder.” Quinn, 12-0152 at 7, — So.3d -; and Duckworth, 11-2835 at 14-20, — So.3d-, overruling Lester v. Exxon Mobil Corp., 09-1105 (La.App. 5 Cir. 6/29/10), 42 So.3d 1071, writ denied, 10-2244 (La.12/17/10), 51 So.3d 14 (to the extent that it held that the filing of an individual lawsuit by a member of a putative class prior to a ruling on the class certification |7issue operates as an “opt out” of the class action and a forfeiture of the suspension provisions of La. C.C.P. art. 596.)

The trial court did not issue written reasons for judgment but rather ruled from the bench. From a reading of the transcript, it appears that the trial court granted Citizen’s exception of prescription based upon its reliance on this Court’s opinion in Lester, the pertinent part of which has now been overruled by the Supreme Court in Duckworth. Finding this to be legal error, we must next examine whether, applying the correct rule of law, plaintiffs’ claims are prescribed.

Generally, the party urging an exception of prescription has the burden of proving facts to support the exception unless the petition is prescribed on its face, in which case the burden shifts to the plaintiff. Duckworth, 11-2885 at 26, — So.3d -, citing Cichirillo v. Avondale Industries, Inc., 04-2894, 04-2918 at 5, 917 So.2d at 428, and Bailey v. Khoury, 04-0620, 07-0647, 04-0684 at 9, 891 So.2d at 1275. Although evidence may be introduced to support or controvert any objection pleaded, in the absence of evidence, an objection of prescription must be decided upon the facts alleged in the petition with all allegations accepted as true. La. C.C.P. art. 931; Duckworth, 11-2835 at 26, — So.3d-, citing Cichirillo, 04-2894, 04-2918 at 5, 917 So.2d at 428.

In this case, plaintiffs’ petition seeks damages pursuant to their individual homeowner’s insurance policies for losses resulting from Hurricane Katrina on August 29, 2005. Through 2006 La. Acts 739 and 802, the legislature extended the prescriptive period on such claims until September 1, 2007. Plaintiffs’ claims, asserted more than three years after this date, would at first glance appear to be | ¡¡prescribed. However, plaintiffs’ petition additionally alleges that each plaintiff “was a member of at least one class action against Defendants (sic) in which certification has not been either granted and/or denied and there has not been a deadline for opting out of the class action.” In other words, the petition affirmatively alleges facts to show that prescription has been suspended by virtue of the timely filing of a class action proceeding in which plaintiffs were putative class members. However, further analysis is necessary in order to determine whether plaintiffs’ petition is prescribed on its face.

In Quinn, the plaintiffs alleged that Citizens was a defendant in a “recently dismissed” class action proceeding filed in the United States District Court for the Eastern District of Louisiana, and that plaintiffs “desire to file their individual claims as a result of this ruling.” The Supreme Court indicated that “ordinarily, such allegations would be sufficient to allow this court to conclude that the Quinns’ petition was not prescribed on its face and, therefore, it was Citizens’ burden to prove the Quinns’ claims are prescribed ...” Quinn, 12-0152 at 11, — So.3d-. However, Citizens argued that La. C.C.P. art. 596 does not apply to suspend prescription when the class action is filed in another jurisdiction. After a thorough analysis, the Supreme Court rejected “cross-jurisdictional tolling” in class action proceedings, and held that the suspension of prescription provided in La. C.C.P. art. 596 “applies only to ‘petition[s] brought on behalf of a class’ in the state courts of Louisiana.” Quinn, 12-0152 at 16, — So.3d -. Although the Quinns had argued in their opposition brief to the exception of prescription that they were putative members of class actions pending in Louisiana state courts (namely: Oubre, Orrill and Buxton), they did not make this allegation in their petition. As such, the court found that the Quinns’ petition was prescribed on its face, that the Quinns did not carry their burden of showing that the action is not prescribed, and that the district |¡,court erred in denying the exception of prescription urged by Citizens. Quinn, 12-0152 at 16, — So.3d-.

In this case, plaintiffs’ allegations regarding suspension of prescription pursuant to La. C.C.P. art. 596 contain no language limiting the class action upon which they rely to one pending in federal court. Applying the well-settled principle that liberal rules of pleading prevail in Louisiana and that each pleading should be construed so as to do substantial justice, we find that plaintiffs’ petition is not prescribed on its face. Therefore, the burden is upon Citizens to prove its exception of prescription.

As noted above, plaintiffs rely upon five timely filed class actions to suspend prescription on their claims, namely: Chris-tenberry, Oubre, Orrill, Press, and the “Road Home” litigation. Since the “Road Home” litigation is pending in federal district court, plaintiffs by law may not rely upon that case for suspension of prescription on their claims. Quinn, 12-0152 at 16, — So.3d-. As to the remaining four class actions relied upon by plaintiffs, each of which was timely filed and pending in a Louisiana state court at the time plaintiffs filed this lawsuit, the burden is on Citizens to show that plaintiffs are not putative members of those classes, or that any one of the three triggering events for the recommencement of the running of prescription pursuant to La. C.C.P. art. 596 has occurred as to each class action, and that plaintiffs’ petition was filed after the prescriptive deadline. In other words, Citizens must show that plaintiffs are not entitled to the benefit of suspension of prescription under Article 596. Citizens did not introduce any evidence at the trial of the exception and clearly has not met its burden as to the remaining four class actions. Therefore, the trial court erred in sustaining Citizens’ | ^exception of prescription as it relates to plaintiffs’ claims that were also plead in Christenberry, Ou-bre, Orrill, and Press.

Plaintiffs further contend that the filing of the “Road Home” litigation by the State of Louisiana, as partial subrogee to the rights of any recipient of a “Road Home” grant, interrupted prescription as to the claim of that grant recipient. As to this contention, plaintiffs made no allegation in their petition that any of them were recipients of “Road Home” grants or had signed a subrogation agreement with the state. Therefore, the burden was on plaintiffs to present evidence on this issue at the trial of the exception to show that there was an interruption of prescription by the filing of the “Road Home” litigation. The only exhibits introduced by plaintiffs on this issue was the petition in the “Road Home” litigation, which does not identify any of the seven plaintiffs before us as recipients of “Road Home” grants, and an unsigned “Limited Subrogation/Assignment Agreement” form. Plaintiffs did not call any witnesses or otherwise provide any competent evidence to establish that any of the seven plaintiffs were recipients of “Road Home” grants or had signed a subrogation agreement -with the State of Louisiana. Therefore, plaintiffs failed to carry their burden to prove that their claims were interrupted by the filing of the “Road Home” litigation. Finding such, we pretermit the issue of whether the bar to “cross-jurisdictional tolling” of prescription is also applicable to co-obligees pursuant to a contractual subrogation agreement.

Finding that plaintiffs are not entitled to either a suspension or interruption of prescription on their claims as a result of the “Road Home” litigation, we further find that the trial court was correct to sustain the exception of prescription to the extent that any claims made by plaintiffs in the current litigation are made in the “Road Home” litigation but are not made in Christenberry, Oubre, Orrill, or Press.

^CONCLUSION

Pursuant to La. C.C.P. art. 596, plaintiffs are entitled to the benefit of suspension of prescription on the claims made in the current litigation that are also made in Christenberry, Oubre, Orrill, or Press. To the extent that the judgment sustained the exception of prescription as to any of these claims, that portion of the judgment is hereby reversed. Plaintiffs are not entitled to the benefit of either suspension or interruption of prescription as a result of the “Road Home” litigation. To the extent that the judgment sustained the exception of prescription as to any claims made by plaintiffs in the current litigation that are also made in the “Road Home” litigation, but not made in Christenberry, Oubre, Or-rill, or Press, that portion of the judgment is hereby affirmed. This matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED

      . The original eleven plaintiffs are A1 Harney, Alfred Singleton, Jr., Cecil Palmer, Jay Saacks, Glenda Mitchell, Rial Diles, III, Betty Palmer, Florence Beauford, Mary Watts, Frank Sylvester, Jr. and Dianne Williams. The claims of Al Harney, Alfred Singleton, Jr., Jay Saacks and Rial Diles, III, were subsequently dismissed, leaving the other seven as remaining plaintiffs.

      . Citizens also filed an exception of improper cumulation of actions, which was deferred by the trial court, and exceptions of lis pendens, vagueness or ambiguity, no cause of action and no right of action, all of which were ruled to be moot in light of the trial court's ruling on the exception of prescription. None of these other exceptions are before this court on appeal.

      . Citizens raises concerns that failure to treat the filing of an individual lawsuit as an “opt out” of the class action litigation, and a forfeiture of suspension of prescription, would promote judicial inefficiency and call into question the binding nature of class actions that have been resolved, either by settlement or final judgment. These arguments may be relevant to other exceptions (for example, and by way of illustration only, exceptions of lis pen-dens and res judicata), however, they have no bearing on our resolution of the exception of prescription.

      . Citizens acknowledges that it contractually extended this prescriptive deadline for its policyholders to September 4, 2007.

      . La. C.C.P. art. 865; Quinn, 12-0152 at 11, n. 6, - So.3d-, n. 6; Haskins v. Clary, 346 So.2d 193, 194 (La. 1977).


author: COOKS, Judge.

text:
    Louis FOX, et al. v. The SHAW GROUP, et al.
    No. 12-329.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 28, 2012.
    Rehearing Denied Feb. 18, 2013.

      Kenneth W. DeJean, Law Offices of Kenneth W. DeJean, Lafayette, LA, for Louis Fox and Jo Ann Fox.
    James A. Bolen, Jr., Patricia K. Penny, Bolen, Parker, Brenner, Lee & Engels-man, Ltd., APLC, Alexandria, LA, for Defendants/Appellees, CLECO Power, LLC and Shaw Constructors, Inc.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

| plaintiffs appeal the judgment of the trial court granting the Defendants’ motion for summary judgment declaring that Louis Fox was the statutory employee of Defendants, Shaw Constructors, Inc. and CLECO Power, L.L.C. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 12, 2008, Louis Fox, while working inside a cyclone tower at the Ro-demacher Power Station, allegedly sustained an injury when an object fell from above, striking him in the head and neck area. On the date of the accident, Mr. Fox was employed by Foster Wheeler Constructors, Inc. as a refractory gunner. CLECO Power, L.L.C. is the owner of the Rodemacher Power Station.

On August 1, 2005, CLECO Power entered into a written contract with Shaw Constructors, Inc. (Shaw), wherein Shaw would act as the general contractor in the construction of Rodemacher Unit 3, which included the cyclone tower where Mr. Fox alleged he suffered his injuries. On October 1, 2005, Shaw and Stone & Webster, Inc. (Stone), entered into an agreement whereby Stone would provide all of the engineering and procurement services required by the August 1, 2005 contract between Shaw and CLECO Power. In February 2006, Stone, described in the general contract between CLECO Power and Shaw as an “affiliate” of Shaw, entered into a purchase order agreement with Foster Wheeler North America Corp. (Foster Wheeler) for the sale of boiler units and the installation of said units at the Rode-macher Unit 3 project. Mr. Fox was employed directly by Foster Wheeler as a refractory gunner and was working in the cyclone tower at the Rodemacher Power Station when the alleged injury occurred.

Fox and his wife, Jo Ann, filed a petition for personal injuries against several defendants: Shaw, CLECO Power, L.L.C., CLECO Corporation, Rodemacher | ¡.Power Station, Louisiana Energy Production, LLC, Lafayette Consolidated Government d/b/a Lafayette Utilities Systems, and Turner Industries (who Plaintiffs alleged had the duty to inspect the cyclone tower). On September 2, 2009, the CLECO defendants and Shaw filed an answer asserting the affirmative defense that they were statutory employers of Mr. Fox. They also filed a dilatory exception of vagueness and a motion to strike. On November 4, 2009, a joint motion was filed to dismiss specific paragraphs of Plaintiffs’ petition and withdraw the exception of vagueness and motion to strike. The joint motion was granted.

On November 20, 2009, the CLECO defendants and Rodemacher Power Station filed a Motion for Summary Judgment alleging there was no factual or legal basis on which to assert liability against them. The trial court denied summary judgment as to CLECO Power L.L.C., but summary judgment was granted as to CLECO Corporation and Rodemacher Power Station.

On July 12, 2010, CLECO Power, L.L.C. filed a second motion for summary judgment contending it bore no responsibility for the injuries sustained by Mr. Fox, as any and all ownership responsibilities for the construction site were delegated to Shaw. That motion for summary judgment was denied.

CLECO Power and Shaw filed a motion for summary judgment requesting the court find (1) that there is no factual or legal basis on which to assert liability against them, and (2) that CLECO Power and Shaw are the statutory employers of Mr. Fox and thus immune from any tort claim brought by him. On September 19, 2011, a hearing on the motion was held and the matter taken under advisement. The trial court rendered judgment finding there was no genuine issue of material fact as to the classification of CLECO Power and Shaw as statutory employers of Mr. Fox. Finding CLECO Power and Shaw were statutory employers of Mr. Fox, it rendered the issue of liability moot as workers’ compensation was . Mr. Fox’s |sexclusive remedy against those two defendants. This appeal followed, and Plaintiffs now allege neither Shaw nor CLECO Power is entitled under the law to classification as the statutory employer of Mr. Fox.

ANALYSIS

In Miller v. Martin, 02-670, p. 5 (La.1/28/03), 838 So.2d 761, 764, our supreme court reiterated the standard applicable to appellate review of cases decided by summary judgment stating:

Appellate review of the granting of a motion for summary judgment is de novo. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.[Code Civ.P.] art. 966(B). A court may grant summary judgment that is “dispositive of a particular issue, theory of recovery, cause of action or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.” La.[Code Civ.P.] art. 966(E).

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Prime Income Asset Management, Inc. v. Tauzin, 07-1380 (La.App. 3 Cir. 4/30/08), 981 So.2d 897. “[S]ummary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action,” except certain domestic actions. La.Code Civ.P. art. 966(A)(2). “The procedure is favored and shall be construed to accomplish these ends.” Id.

Louisiana Revised Statutes 23:1031 provides for workers’ compensation benefits to an employee who is injured by an accident “arising out of’ and “in the course of’ his employment. Smith v. Continental Casualty Company, 98-2896 (La.App. 1 Cir. 2/18/00), 752 So.2d 381, writ denied, 00-0789 (La.4/28/00), 760 So.2d 1183. Under certain circumstances, an owner or principal can be held to be |4a statutory employer, and thus liable to pay workers’ compensation to an employee of a contractor he engages. Under such circumstances, workers’ compensation is the exclusive remedy of the contractor’s employee held to be a statutory employee of the principal, and the principal is immune from tort liability. La.R.S. 23:1032. These circumstances are set forth in La. R.S. 23:1061.

“The issue of statutory employment status is a mixed question of law and fact.” Dominio v. Folger Coffee Co., 09-1278, p. 10 (La.App. 4 Cir. 2/10/10), 32 So.3d 955, 961, writ denied, 10-570 (La.5/21/10), 36 So.3d 232. The doctrine of “statutory employer” is codified in La.R.S. 23:1061, amended in 1997, to provide that when a valid written contract recognizes the existence of a statutory employer relationship, a rebuttable presumption of a statutory relationship is created. St. Angelo v. United Scaffolding, Inc./X-Serv., Inc., 09-1420 (La.App. 4 Cir. 5/19/10), 40 So.3d 365, writ denied, 10-1412 (La.9/24/10), 45 So.3d 1082. La.R.S. 23:1061 provides as follows:

A. (1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be hable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
(2) A statutory employer relationship shall exist whenever the services |fior work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
B. When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

There are two instances in which a statutory relationship will be found, thus holding the statutory employer only liable for workers’ compensation benefits: (1) being a principal in the middle of two contracts, referred to as the “two-contract” theory, and (2) the existence of a written contract recognizing the principal as the statutory employer. Prejean v. Maint. Enters., Inc., 08-364 (La.App. 4 Cir. 3/25/09), 8 So.3d 766, writ denied, 09-892 (La.6/26/09), 11 So.3d 496. In its brief before this Court, appellees, noting the lack of any provision in the Purchase Order between Stone and Foster Wheeler, the direct employer in this case, stated:

The absence of such an explicit contractual provision merely indicates the inapplicability of La.R.S. 23:1061 (A)(8) to the Foster Wheeler situation, and does not affect the applicability of (A)(2). (Emphasis in the original.)

This would seem to indicate Shaw is basing its claim of statutory employer immunity solely on the “two-contract” theory set forth in La.R.S. 23:1061(A)(2), which was the basis the trial court found for finding Shaw was the statutory | ^employer of Mr. Fox. The “two-contract” theory “applies when: (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed.” Daigle v. McGee Backhoe & Dozer Serv., 08-1183, p. 6 (La.App. 5 Cir. 4/28/09), 16 So.3d 4, 7, writ denied, 09-1372 (La.10/2/09), 18 So.3d 113 (citing Bedding field v. Standard Constr. Co., 560 So.2d 490 (La.App. 1 Cir.1990)).

Initially, we note CLECO Power’s classification as a statutory employer of Mr. Fox is dependent upon whether Shaw is classified as a statutory employer of Mr. Fox. If Shaw is determined to be the statutory employer of Mr. Fox at the time of the accident, under the terms of the contract between CLECO Power and Shaw, CLECO Power is also recognized as a statutory employer of Mr. Fox under La.R.S. 23:1061(A)(3).

There is no question the first two requirements for application of the “two-contract” theory were met. Shaw entered into a contract with CLECO Power and, pursuant to that general contract, work was performed. The question concerns the third requirement, that in order for the principal (Shaw) to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed. Shaw argues, in order to fulfill its contractual relationship with CLECO Power, it entered into a subcontract directly with Foster Wheeler. The trial court found this was the case, and gave the following written reasons for finding Shaw was the statutory employer of Mr. Fox:

The court concludes, after reviewing the purchase order and the Corporate Guaranty, that Foster Wheeler contracted with Shaw. The court reaches this conclusion based on the section of the corporate guaranty in which Foster Wheeler acknowledges Stone as Shaw’s agent. That portion of the document reads: ‘Whereas, Purchaser (Stone) as agent for contractor (Shaw) and FWNA (Foster Wheeler) have entered into that certain purchase order for two CFB Boilers.” |7This provision is clear that Stone was acting on behalf and for the benefit of Shaw, as the principal of Stone. In fact all the guaranties and rights given by Foster Wheeler are specifically for the benefit of the Contractor, which is Shaw.
The guaranty also provides that all rights, obligations and remedies shall be interpreted and governed in accordance with Louisiana laws. The court finds this provision relevant as the Louisiana Civil Code governs actions taken by a [mandatary] acting on behalf of the principal. The court opines that articles 3016, 3020 and 3022 of the Louisiana Civil Code control in this issue. Louisiana Civil Code Article 3016 states that a [mandatary] who contracts in the name of the principal within the limits of his authority does not bind himself personally for the performance of the contract. Article 3020 states that when the [man-datary] is acting within the limits of his authority the principal is bound to perform the contract the [mandatary] makes with a third person. Article 3022 provides that a third person with whom a [mandatary] contracts in the name of the principal, or in his own name as [mandatary], is bound to the principal for the performance of the contract. These articles clearly articulate that when a [mandatary] enters into a contract with a third person in the name of the principal and within the limits of his authority, the contract binds the principal to the third person and the third person to the principal, regardless of whether the contract is in the name of the principal or the [mandatary]. Thus the purchase order executed between Stone and Foster Wheeler obligated only Foster Wheeler and Shaw. Therefore Shaw is the statutory employer of Mr. Fox, Foster Wheeler’s direct employee.

Plaintiffs argued Shaw entered into a subcontract with Stone, who then subcontracted part of its work to Foster Wheeler. According to Plaintiffs, this breached the required contractual chain necessary for application of the “two-contract” theory, and “Shaw has failed to establish that it, as the alleged principal, stands in the middle of the two contracts.” Therefore, Plaintiffs contend Shaw cannot be deemed to be the statutory employer of Mr. Fox.

Shaw counters that, even if it were determined it was Stone and not Shaw that entered into the subcontract with Foster Wheeler, Shaw still is entitled under La. R.S. 23:1061(A)(2) to classification as a statutory employer because it entered into a subcontract pursuant to fulfilling its general contract with CLECO Power.

The contractual path of the parties begins with the general contract between IsCLECO Power and Shaw for the construction of the Rodemacher Unit 3. Specifically, Article XXVI, section 26.2 in the Contract between CLECO Power and Shaw for Engineering, Procurement and Construction of the Rodemacher Unit 3, dated August 1, 2005, states:

Contractor shall be an independent contractor with respect to the Work to be performed hereunder. Contractor, its Subcontractors, Vendors or the employees of any of them, shall not be deemed to be servants, employees or agents of Owner. Owner is specifically recognized as a statutory employer of all employees of Contractor, whether direct employees or statutory employees, who are performing work under this Contract, as contemplated by LSA-R.S. 23:1061 A.

On October 1, 2005, Shaw entered into a contract with Stone, wherein Stone agreed to provide Shaw (the Contractor) with “all of the engineering and procurement services (“Services”) described in the contract dated August 1, 2005 (the “Prime Contract”) between Contractor and CLECO Power, LLC (“Owner”) in furtherance of the project known as Rodemacher Unit 3 (the “Project”).” Section 5 of the Shaw-Stone contract also provided that all terms and conditions of the “Prime Contract” between Shaw and CLECO Power, are “directly applicable” to the Shaw-Stone contract. Section 6 of the Shaw-Stone contract provides that “all employees of Engineer [Stone] shall be deemed to be the statutory employees of Contractor [Shaw] and Owner [CLECO Power] in accordance with applicable law, and Contractor [Shaw] acknowledges that Engineer [Stone] is performing Services which are integral to Contractor’s [Shaw’s] and Owner’s [CLECO Power’s] business operations.”

Stone then entered into an agreement/purchase order with Foster Wheeler on February 2, 2006 to supply two cyclones, including all associated materials and labor, for Rodemacher Unit 3. By means of that purchase order, Shaw subcontracted a portion of the work to Foster Wheeler. Made part of that contract/purchase order is a document titled “Consent to Assignment”, which was 19signed by representatives of CLECO Power, Shaw, Stone and Foster Wheeler. This “Consent to Assignment” lists CLECO Power as owner, Shaw as contractor, and Foster Wheeler as subcontractor. Thus, the “Consent to Assignment” signed by the parties clearly contemplates Foster Wheeler as a subcontractor of Shaw.

Appellees also argue that even if it were found Shaw did not subcontract directly with Foster Wheeler, it is still entitled under the law to statutory employer status. In support of this argument, Shaw cites the case of St. Angelo v. United Scaffolding, Inc./X-Serv., Inc., 40 So.3d 365. In that case, the plaintiffs were injured in a reactor explosion at the Chal-mette Refinery. The plaintiffs were employed directly by S.J. Owens Enterprises, Inc. Personal injury suits were filed against ExxonMobil and Chalmette Refining, L.L.C., who both contended they were statutory employers of the plaintiffs. Exx-onMobil operated the Chalmette Refinery under an operating agreement between it and Chalmette Refining, L.L.C. The plaintiffs’ direct employer, S.J. Owens, had entered into a “Continuing Services Agreement” with Procurement, which was a division of ExxonMobil Global Services. Exx-onMobil argued the contract between S.J. Owens and Procurement was actually a contract between S.J. Owens and Exxon-Mobil, because Procurement entered into the contract on behalf of ExxonMobil and Chalmette Refining, L.L.C. The plaintiffs countered that Procurement was not permitted to contract on behalf of ExxonMobil and Chalmette Refining, L.L.C.

The court in St. Angelo found Procurement was authorized by a Master Services Agreement between it and ExxonMobil to engage in “procurement of goods and services on behalf of ExxonMobil, including “arranging contracts, agreements, or orders in the name of and for the account of Purchaser to acquire selected goods, services, and construction works.” Id. at 373. In concluding that Procurement could contract on ExxonMobil’s behalf, the fourth circuit stated:

| inThe fact that the Procurement division of ExxonMobil Global Services signed the CSA does not deny statutory employer status to ExxonMobil and CRLLC, who are clearly the principal parties in the agreement. A clear reading of the applicable statutes and this Court’s recent decisions shows that statutory employer status is more liberally favored as a result of the 1997 amendment in the law.

Id. at 374.

In the instant case, Stone was authorized in the contract between it and Shaw to provide “engineering and procurement services” as described in the general contract between CLECO Power and Shaw. Despite Plaintiffs arguments that “there is no provision in the Shaw-Stone Contract whereby Shaw affirmatively grants unto Stone the legal authority to act in the name of Shaw by contracting with Third Parties,” the above provision in the Shaw-Stone contract authorizing Stone to be responsible for “procurement services” in furtherance of the Rodemacher Unit 3 project does grant such authority. We agree that Stone was acting on behalf and for the benefit of Shaw, as the principal of Stone, thus entitling Shaw to classification as the statutory employer of Foster Wheeler’s direct employee, Louis Fox. The trial court did not err in granting Shaw and CLECO Power’s motion for summary judgment.

ANALYSIS

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiffs-Appellants.

AFFIRMED.

      . The Plaintiffs' personal injury claims and lawsuit continue against Turner Industries, Inc., who Plaintiffs allege had the responsibility of inspecting the cyclone tower where Mr. Fox was injured.


author: SUSAN M. CHEHARDY, Judge.

text:
    Lionel HARRIS, Sr., et al. v. LOUISIANA CITIZENS PROPERTY INSURANCE COMPANY.
    No. 12-CA-176.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 30, 2012.

      Joseph M. Bruno, Melissa A. DeBarbier-is, Christopher M. Hatcher, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant, Lionel Harris, Sr.
    John W. Waters, Jr., Kristin Mosely Jones, Attorneys at Law, New Orleans, LA, for Defendant/Appellee, Louisiana Citizens Property Insurance Corporation.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

IgThis suit was brought by plaintiff against defendant insurer for Hurricane Katrina-related damages to his residence located in Des Allemands, Louisiana. The petition was filed on September 13, 2010. Defendant filed an exception of prescription, which the trial court granted on November 14, 2011. Plaintiff appeals. For the reasons assigned, we affirm the ruling of the trial court granting the exception of prescription. In addition, we remand the matter to the trial court to allow the plaintiff to amend and supplement the petition.

FACTS

On the morning of August 29, 2005, Hurricane Katrina came ashore, causing massive damage to an extended area of southeast Louisiana. According to his petition, Lionel Harris, Sr. (“Mr. Harris”) sustained damages exceeding the sum of $74,999.00 to his home, located at 181 Kliner Road in Des Allemands. Mr. Harris alleges in his petition that he purchased a policy of insurance with Louisiana Citizens Property Insurance Corporation (“Citizens”) for any and all hurricane-related damages, from wind or wind-driven rain, up to the replacement value of his home and personal property. Mr. Harris also alleges that he provided Citizens with proper notice and proof of loss, and that Citizens failed to adjust his loss in a timely fashion, or for an amount that would adequately compensate him under the provisions of the policy, in violation of Citizens’ duties of good faith and fair-dealing. Mr. Harris’s petition further alleges that he is a putative member of a number of pending class action lawsuits and, as such, prescription remains suspended on his claims against Citizens.

In response to the petition filed by Mr. Harris, on October 28, 2010, Citizens filed an answer alleging all affirmative defenses available, and a general denial of all other claims made in the original petition. On September 13, 2011, Citizens filed an exception of prescription, which was set for hearing on October 27, 2011. The remainder of the trial court record consists of the memoranda of counsel for Mr. Harris and Citizens arguing their individual theories as to why the exception should be granted or denied, and the transcript of the hearing held on October 27, 2011. No evidence was offered or introduced by either party at the hearing. On November 14, 2011, the trial court issued judgment without reasons, granting the exception of prescription and dismissing Mr. Harris’s petition. Mr. Harris did not file any post-hearing motions.

It is from this decision that Mr. Harris now appeals, citing in brief three assignments of error:

1. Whether the trial court erred as a matter of law in finding that Defendant had met its burden of proof on the issue of prescription, as the face of Plaintiffs petition contained sufficient evidence to support the fact that Plaintiffs claims were not prescribed, as it alleged various class actions served to toll prescription with regard to Plaintiffs claims.
2. Whether the trial court erred as a matter of law in granting Defendant’s Exception of Prescription dismissing, with prejudice, Plaintiffs Hurricane Katrina claims although Plaintiffs suit was not prescribed as he had established that he was a putative class member of one or more timely filed class actions, which served to suspend prescription pursuant to LSA-C.C.P. Art. 596.
|43. Whether the trial court erred as a matter of law in finding that filing of an individual suit results in the forfeiture of the suspension of prescription afforded by the filing of a class action pursuant to LSA-C.C.P. Art. 596, and that Plaintiffs filing of the instant suit served to “opt out” of the class actions of which he is a member.

ANALYSIS

In reviewing a peremptory exception of prescription, the standard of review requires an appellate court to determine whether the trial court’s finding of fact was manifestly erroneous. Carter v. Haygood, 2004-0646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267. On the issue of prescription, the mover bears the burden of proving that the claim is prescribed. Bailey v. Khoury, 2004-0620, p. 9 (La.1/20/05), 891 So .2d 1268, 1275. However, if the petition is prescribed on its face, then the burden of proof shifts to the non-moving party to negate the presumption by establishing a suspension or interruption. Id.

Louisiana jurisprudence recognizes three theories upon which a plaintiff may rely to establish that prescription has not run: suspension, interruption and renunciation. Lima v. Schmidt, 595 So.2d 624, 628 (La.1992).

If prescription is interrupted, the time that has run is not counted, and prescription commences to run anew from the last day of interruption. La. Civ. Code art. 3466. By contrast, if prescription is suspended, the period of suspension is not counted toward the accrual of prescription, but the time that has previously run is counted. La. Civ.Code art. 3472.

Adams v. Stalder, 2006-0051, pp. 4-5 (La.App. 1 Cir. 3/17/06), 934 So.2d 722, 725.

In order to determine whether the trial court was manifestly erroneous in its decision to grant Citizens’ exception of prescription, we must initially address the issue of the burden of proof. Citizens’ exception of prescription alleges that the claims made in Mr. Harris’s petition were prescribed on the face of the petition |sand, therefore, the burden was on plaintiff to show that the claims had not prescribed. In opposition to Citizens’ exception, Mr. Harris argues that the petition alleges he is a putative member of eight pending class action suits, and that the pendency of those actions suspended the prescriptive period for the filing of Katrina-related claims against Citizens. He further argues that the burden of proof remained on Citizens to prove these claims have expired.

Mr. Harris does not argue in the record before us that the policy of insurance issued by Citizens contained more than the one-year prescriptive period that has been noted in other cases involving Citizens’ policy language and Hurricane Katrina-related claims. See, e.g., Taranto v. Louisiana Citizens Property Insurance Corporation, 2010-0105, p. 8 (La.3/15/2011), 62 So.3d 721, 727. It is likewise undisputed in the present case that Act 802 of the 2006 Regular Session of the Louisiana Legislature extended the one-year prescriptive period for the filing of Hurricane Katrina damages claims to August 30, 2007. Mr. Harris’s suit was filed September 13, 2010. It would appear that despite Mr. Harris’s argument to the contrary regarding the possible suspension of prescription under La. C.C.P. art. 596, the suit at issue was in fact prescribed on its face, as it was clearly filed some three years after the last statutory date allowed. As a result, the trial court correctly found that the burden had shifted to plaintiff to prove that his claim had not prescribed.

It is, therefore, to the question of suspension we now turn, for after the trial court correctly shifted the burden of proof, this was the only avenue available to Mr. Harris to salvage his claim. In the original petition and in his motion in opposition to defendant’s exception of prescription, Mr. Harris argues that because he is a putative member of numerous “pending” class action lawsuits, prescription remains suspended under La. C.C.P. art. 596.

| (¡Louisiana Code of Civil Procedure article 596 provides in part:

A. Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein. Prescription which has been suspended as provided herein, begins to run again:
(1) As to any person electing to be excluded from the class, thirty days from the submission of that person’s election form;
(2) As to any person excluded from the class pursuant to Article 592, thirty days after mailing or other delivery or publication of a notice to such person that the class has been restricted or otherwise redefined so as to exclude him; or
(3) As to all members, thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed, that the demand for class relief has been stricken pursuant to Article 592, or that the court has denied a motion to certify the class or has vacated a previous order certifying the class.

In his original petition, Mr. Harris listed eight class actions of which he claimed he was a putative class member. He alleges that membership in any one of these would have suspended prescription of his otherwise expired claims. However, no class definitions for any of the proposed classes are given in the petition, and no evidence was introduced at the hearing on the exception of any class definitions.

We cannot say from the record before us that Mr. Harris carried his burden of proof, based on the mere allegations in his pleadings that he was a putative member of any of the listed class actions, and the record reveals no evidence offered by him to prove the allegations. La. C.C.P. art. 596(A) provides that the class action petition determines what claims are suspended. Without the introduction of those petitions, or other evidence proffered at the hearing, to prove 17that Mr. Harris fits the definition of the eight class action suits named in his petition, Mr. Harris failed to carry his burden of proving any possible suspension the eight class action suits listed in the original petition might have provided to his claim.

In plaintiffs memorandum in opposition to Citizens’ exception of prescription, the only class definition given is from the Insurance Master Consolidated Class Action complaint, filed March 15, 2007, in the matter of In Re: Katrina Canal Breaches Consolidated Litigation, No. 05-4182 (U.S.D.C., E.D.La.), and various other Katrina-related lawsuits. Again, however, no actual evidence of the class definition was offered at the hearing.

Mr. Harris argued to the trial court in his memorandum, and assigns as error in his appellate brief, that prescription remains suspended as to his state court claims as a putative member of this class, because the federal class action suit is still “pending” for the purposes of La. C.C.P. art. 596(8). Mr. Harris admits that class certification was denied on June 6, 2009 in In Re: Katrina Canal Breaches Consolidated Litigation, supra. Mr. Harris conceded that, while the federal rules do not require or even allow for the publication of notice in the event class certification is denied, “cross-jurisdictional” tolling should nevertheless be allowed in a state court proceeding.

Mr. Harris argues he should be able to take advantage of the requirement of La. C.C.P. art. 596(3). That would maintain the suspension afforded in state court class action petitions until such time as notice (required by our statutory scheme, but not allowed by the federal rules) is issued. Mr. Harris’s argument, if adopted by this Court, would render the Louisiana statutory scheme regulating class action filings impotent because it would allow suspension to continue indefinitely. In our view, the application of “cross-jurisdictional” tolling in this case would lead to |sabsurd and unintended consequences. We decline to apply that doctrine to these facts.

After carving away Mr. Harris’s faulty reliance on a suspension of prescription by In Re: Katrina Canal Breaches Consolidated Litigation, supra, all that remains are the unsupported allegations in his petition that his membership in a number of undefined state class action cases suspended prescription and allowed him to file a timely claim some three years after the already-extended prescriptive period ended on August 30, 2007, as provided in Act 802 of 2006. Given the lack of evidence introduced to support Mr. Harris’s claims that he was a member of any of the other classes listed in his petition, we cannot say the trial court erred in granting Citizens’ exception.

Because the trial judge failed to issue written reasons for judgment or to state on the record his reasons for granting Citizens’ exceptions, we decline to address the error raised in assignment three in Mr. Harris’s brief. There is no evidence in the record before us to suggest that the trial court considered the “opt-out” issue presented to this Court in Lester v. Exxon Mobil Corp., 09-1105 (La.App. 5 Cir. 6/29/10), 42 So.8d 1071, writ denied, 2010-2244 (La.12/17/10), 51 So.3d 14. Notably, shortly before this opinion was issued, the Louisiana Supreme Court overruled Lester in Duckworth v. Louisiana Farm Bureau Mut. Ins. Co., 11-2835, p. 14 (La.11/2/12), — So.3d -. We have held that the trial court correctly determined the burden in this case, and that Mr. Harris 19failed to carry that burden based on the evidence before us. We see no reason, therefore, to engage in an immaterial exercise on review.

DECREE

For the foregoing reasons, we cannot say that the trial court was manifestly erroneous in finding that Mr. Harris’s claim was prescribed. Accordingly, we affirm the judgment of the trial court sustaining Citizens’ exception of prescription. However, the case is remanded to the district court to allow Mr. Harris an opportunity to amend and supplement his petition. Costs of the appeal are assessed against Mr. Harris.

AFFIRMED AND REMANDED

      . Our view on this point is supported by Quinn v. Louisiana Citizens Property Ins. Corp., 2012-0152 (La. 11/2/12), - So.3d -, decided shortly before this opinion was rendered: "To interpret [Article 596] to provide for cross-jurisdictional tolling would not only subvert the purpose of prescriptive statutes, but would render much of the language of Article 596 meaningless when a class action is filed in a jurisdiction other than Louisiana. Our rules of statutory interpretation do not permit us to reach such a result. The distinctions between Louisiana class action procedure and federal class action procedure reinforce our conviction that the legislature, in linking the suspension of La. C.C.P. art. 596 to unique provisions of Louisiana law, did not intend to adopt 'cross jurisdictional tolling.’" Quinn, 2012-0152 at p. 7, - So. 3d-.

      . See Quinn, 2012-0152 at p. 10, - So.3d