text:
    Pamela Marinovich SHORT v. David Allen SHORT.
    No. 12-CA-312.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2012.
    See also, 33 So.3d 988.

      Rachel C. Marinovich, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant, Pamela Marinovich Short.
    Bennett Wolff, Attorney at Law, Metair-ie, LA, for Defendant/Appellee, David Allen Short.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

|2This appeal follows a finding of contempt and imposition of a jail sentence against the appellant for a failure to respond to discovery. We affirm, for the reasons that follow.

PROCEEDINGS BELOW

This ongoing domestic dispute has come before this Court on three prior appeals, as well as several previous writ applications. The matter now before us for review concerns a ruling that held Pamela Marinovich Short in contempt of court for what the trial court found to be a “deliberate failure and refusal to abide by the orders of the court” with respect to a motion to determine interim spousal support.

The designated record before us indicates that on January 18, 2011, the domestic commissioner granted a motion to compel discovery, filed by David Short, regarding his interrogatories propounded to Ms. Short on August 19, 2009 and July 29, 2010.

|aOn March 2, 2011, Mr. Short filed an emergency rule for contempt, attorney’s fees and costs, in which he alleged that appellant had “failed to answer certain Interrogatories and failed to produce certain documentation in response to the Request For Production of Documents.” Mr. Short also requested sanctions because of Ms. Short’s “total disrespect, abusive, insulting, and discourteous language in her discovery responses.”

Specifically, Mr. Short referenced Ms. Short’s responses to Interrogatory Number Nine, where she answered “FU”, and Interrogatory Number Eleven, where her response was “NOYFB”. Mr. Short concluded, and the commissioner ultimately agreed, that the abbreviations in the first response stood for the expletive “F — k You”, while the second response was intended to be read as “None of Your F— king Business”.

The domestic commissioner ordered Ms. Short to show cause on March 21, 2011, why “she should not be held in contempt of Court for her willful and deliberate failure to abide by the orders of the Court,” and why the provisions of La. C.C.P. art. 1471 should not be invoked because of Ms. Short’s “total disrespect, abusive, insulting, and discourteous language contained in her discovery responses.”

Following the March 2, 2011 hearing, Mr. Short filed a second rule for contempt, attorney’s fees and costs, alleging that Ms. Short failed to fully respond to his interrogatories and request for production of documents. In response, the domestic commissioner ordered Ms. Short to show cause on April 26, 2011, why | /‘she should not be held in contempt of Court for her willful and deliberate failure and refusal to abide by the orders of the Court.”

On April 11, 2011, the commissioner issued a judgment on the March 21, 2011 rule for contempt. He found Ms. Short “in contempt for her intentional and willful refusal to abide by the order of this court dated January 13, 2011, compelling her to answer the discovery propounded by David Short.” The court further found that “[w]hile the responses was [sic] not signed by the respondent, but by her attorney instead, she is nonetheless responsible for the answers she provided or failed to provide.” The judgment held open the hearing and set May 6, 2011 as the date for imposition of sentence for Ms. Short’s contempt of court.

On May 6, 2011, the hearing on Ms. Short’s sentencing for contempt of court was held. The Commissioner explained that Ms. Short was found in contempt for the previous answers that she had provided in the interrogatories, “FU” and “NYOFB”. The commissioner then sentenced Ms. Short to 48 hours in Jefferson Parish prison. On that same date, Ms. Short filed a notice of intent to apply for writs to this Court on her sentencing and requested a stay from the commissioner, which was denied.

Ms. Short filed an emergency writ application to this Court, seeking a stay of the execution her sentence. This Court granted the stay, ordered Ms. Short’s immediate release from jail, and also ordered her “to file the appropriate proceeding for a review of the contempt adjudication and sentence and to provide all the necessary documentation for a determination on the merits within thirty days” of the date of the disposition.

On August 17, 2011, Ms. Short filed a petition in the district court for a writ of mandamus, with a request for a stay of enforcement. The district court denied the writ application on that same date. On August 19, 2011, Ms. Short filed a | amotion to recuse the domestic commissioner, which was denied on August 22, 2011.

On August 24, 2011, the domestic commissioner issued a judgment imposing sentence, and issued written reasons for judgment two days later. Ms. Short was ordered to appear before the domestic commissioner on September 12, 2011 to resume serving her sentence issued on May 6, 2011. On September 26, 2011, Ms. Short filed a motion for appeal.

ASSIGNMENTS OF ERROR

Ms. Short contends, first, that the domestic commissioner committed manifest error in finding appellant in contempt of court without a pre-existing judgment or court order. Second, she argues that the domestic commissioner committed manifest error in imposing jail time in response to a discovery ruling without a pre-existing judgment or court order, and without a due process hearing.

LAW AND ANALYSIS

A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. La. C.C.P. art. 221. Contempts of court are of two kinds, direct and constructive. Id.

Contempt proceedings are designed for the vindication of the dignity of the court rather than for the benefit of a litigant. Brunet v. Magnolia Quarterboats, Inc., 97-187 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, writ denied, 98-0990 (La.5/29/98), 720 So.2d 343, cert. denied, Polaris Ins. Co., Ltd. v. Brunet, 525 U.S. 1104, 119 S.Ct. 869, 142 L.Ed.2d 771 (U.S.1999); Parish of Jefferson v. Lafreniere Park Foundation, 98-345 (La.App. 5 Cir. 9/15/98), 720 So.2d 359, writ denied, 98-2598 (La.10/28/98), 723 So.2d 965.

IfiLa. C.C.P. art. 222 defines direct contempt of court as follows, in pertinent part:

A direct contempt of court is one committed in the immediate view and presence of the court and of which it has personal knowledge....
Any of the following acts constitutes a direct contempt of court:
(3) Use of insulting, abusive, or discourteous language by an attorney or other person in open court, or in a pleading, brief, or other document filed with the court in irrelevant criticism of another attorney or of a judge or officer of the court.... [Emphasis added.]

La. C.C.P. art. 223 provides:

A person who has committed a direct contempt of court may be found guilty and punished therefor by the court forthwith, without any trial other than affording him an opportunity to be heard orally by way of defense or mitigation. The court shall render an order reciting the facts constituting the contempt, adjudging the person guilty thereof, and specifying the punishment imposed.

La. C.C.P. art. 224 defines constructive contempt as follows, in pertinent part:

A constructive contempt of court is any contempt other than a direct one. Any of the following acts constitutes a constructive contempt of court:
(2)Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court:
(10) any other act or omission punishable by law as a contempt of court, or intended to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority, and which is not a direct contempt.

Direct contempt is committed in the presence of the Court, and constructive contempt is committed outside of the presence of the Court. DeGruy v. DeGruy, 98-1416 (La.App. 4 Cir. 1/27/99), 728 So.2d 914. Willful disobedience of a court 17order constitutes constructive contempt of court. La. C.C.P. art. 224(2); In re Jones, 10-66 (La.App. 5 Cir. 11/9/10), 54 So.3d 54, writ not considered, 10-2738 (La.2/4/11), 56 So.3d 979.

To find a person guilty of constructive contempt, it is necessary to find that he or she violated the order of court intentionally, knowingly and purposefully, without justifiable excuse. Brunet, supra.

A trial court is vested with great discretion in determining whether circumstances warrant holding a party in constructive contempt of court pursuant to La. C.C.P. article 224 for willful disobedience of a court order. South East Auto Dealers Rental Ass’n, Inc. v. EZ Rent To Own, Inc., 09-0011 (La.App. 4 Cir. 6/30/10), 42 So.3d 1094, writ denied, 10-1810 (La.10/29/10), 48 So.3d 1093.

The record reflects that the domestic commissioner granted a motion to compel on January 18, 2011 ordering Ms. Short to answer interrogatories propounded by Mr. Short, and that Ms. Short provided rude and insulting comments, and refused to answer two of those interrogatories. Thereafter, the domestic commissioner held contempt proceedings in which he found Ms. Short to be in contempt for her failure to abide by the court’s order compelling her to answer discovery. In his reasons for judgment, the domestic commissioner stated, “These responses [to Interrogatory 9 and Interrogatory 11] demonstrate a total disregard for the hon- or and dignity of this court, on the part of Pamela Short and actually serves to diminish the honor and dignity of the court. This behavior is found to be reprehensible and should never be tolerated.”

Considering the facts as presented, we find no abuse of the trial court’s discretion in holding Ms. Short in constructive contempt.

In this appeal, Ms. Short alleges that the domestic commissioner erred in finding her in constructive contempt and in imposing jail time without a court 18order, charging that his order of January 18, 2011 did not specify what discovery she was to produce. We find no merit to this allegation. Ms. Short was clearly aware that she was ordered to answer the interrogatories and requests for documents propounded by Mr. Short, and she certainly should have known that her offensive and rude comments did not comply with the court’s order.

Ms. Short next contends that the court should not have found her in contempt and imposed jail time for a failure to comply with discovery. We disagree. La. C.C.P. art. 1471 sets forth the sanctions available for a party’s failure to comply with court-ordered discovery. One such sanction is to find a party in contempt of court. La. C.C.P. art. 1471(A)(4).

Ms. Short further contends that she was denied due process, alleging that there was no contradictory hearing in which she was allowed to present evidence. However, the record shows that a hearing on the motion for contempt was held on March 21, 2011, but Ms. Short failed to appear. Ms. Short’s attorney, who was present at the hearing, stated that the responses in question were typed by an unknown secretary, and that she filed the responses without first reading them. The domestic commissioner found, however, that Ms. Short did not call any witnesses to support this contention, that the answers propounded were those of Ms. Short (and presumably not her attorney), and that there was no evidence to support otherwise. Again, we find no abuse or error in this determination of the domestic commissioner. We find that Ms. Short’s due process rights were not violated and that she was given an opportunity to present a defense in this matter.

We therefore affirm the ruling finding Ms. Short in contempt for failure to comply with a court order, and ordering her to serve 48 hours in Jefferson Parish Prison. Ms. Short is to bear the costs of this appeal.

AFFIRMED

      . The previous appeals and writ applications in this case, all under the name Short v. Short, are as follows: (1) 08-637 (La.App. 5 Cir. 8/15/08), writ denied (unpublished writ disposition); (2) 09-416 c/w 09-639 c/w 09-640 (La.App. 5 Cir. 3/23/10), 33 So.3d 988, affirmed in part, reversed in part, and remanded, writ denied, 2010-1086 (La.9/3/10), 44 So.3d 688; (3) 11-3 (La.App. 5 Cir. 10/25/11), 77 So.3d 405, affirmed, writ denied, 2011-2635 (La.2/10/12), 80 So.3d 472; (4) 11-493 (no disposition rendered after denial of extension to supplement application); (5) 11-1084 (La.App. 5 Cir. 5/22/12), 96 So.3d 552.

      . INTERROGATORY NUMBER NINE: Are you expense sharing with your boyfriend? If so, please provide a listing, including a description and the amount, of any and all expenses that you are sharing.

      . INTERROGATORY NUMBER ELEVEN: Please state the amount of your boyfriend’s gross monthly income.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    JEFFERSON FEDERATION OF TEACHERS, Joyce Omega Blunt, Tina A. Mezquita, Carla M. Segura and Nathan Winesberry v. JEFFERSON PARISH SCHOOL BOARD.
    No. 12-CA-262.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2012.

      Louis L. Robein, Jr., Nancy Picard, Attorneys at Law, Metairie, LA, Larry Samuel, Attorney at Law, New Orleans, LA, for PlaintiffiAppellant.
    Michael G. Fanning, Attorney at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2This matter arises from the denial of a petition for preliminary and permanent injunction against the imposition of a one-day unpaid furlough, in favor of Defendant/Appellee, Jefferson Parish School Board, and against Plaintiffs/Appellants, Jefferson Federation of Teachers, Joyce Omega Blunt, Tina A. Mezquita, Carla M. Segura & Nathan Winesberry, from the 24th Judicial District Court, Division “J”. For the following reasons, we vacate the trial court’s ruling and remand this matter for further proceedings consistent with this opinion.

Facts and Procedural History

The parties have stipulated the following relevant facts. On July Ilth, 2011, at a duly noticed public hearing, the defendant passed a motion imposing a one-day unpaid furlough on all certified teachers for the 2011-2012 school year. This action reduced the pay of each certified teacher for the 2011-2012 school year by the amount of pay that teacher would have received for that day, had he or she worked. As a result of this furlough, certified teachers were to be paid for one day less during the 2011-2012 school year than they were paid in the 2010-2011 school year.

|oOn July 15, 2011, plaintiffs filed a petition for preliminary and permanent injunction to prohibit the defendant from implementing this one-day furlough. A hearing on these matters was held on October 17, 2011. At that hearing, the trial court rendered a judgment which denied the plaintiffs’ petition for preliminary and permanent injunction. Plaintiffs now appeal that judgment.

Discussion

At issue is whether La. R.S. 17:421.3(E)(1) prohibits the defendant from furloughing the plaintiffs and thereby reducing their salary by the amount they would have earned for that furloughed day. La. R.S. 17:421.3(E)(1) states in relevant part that:

... the amount of the annual salary paid to any teacher in any school year shall not be reduced below the amount of such salary paid during the previous school year, nor shall the amount of the annual salary paid to any teacher be reduced at any time during an academic year.

Plaintiffs argue that under the rules of statutory construction, defendant’s actions are in plain violation of this law. Indeed, when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. Here, it is undisputed that this furlough by the defendant will result in certified teachers being paid less than those teachers had been paid in the previous year.

Defendant argues first, that the language of La. R.S. 17:421.3(E)(1) prohibits it from lowering the rate of pay of the plaintiffs, not the actual amount paid. The argument is incorrect. Recently, this Court decided in Jefferson Federation of Teachers v. Jefferson Parish School Bd., 11-836 (La.App. 5 Cir. 4/10/12); 92 So.3d 962 (2012), that the plain text of a similar statute, La. R.S. 17:422.6, prohibited this defendant from furloughing its school employees and reducing the |4pay of those employees by the amount that they would earn for that day. La. R.S. 17:422.6 states in relevant part that:

Notwithstanding any other provisions of law to the contrary the amount of the hourly wage or annual salary paid to any school employee shall not be reduced for any school year below the amount paid to the school employee in hourly wage or annual salary during the previous school year, nor shall the amount of the hourly wage or annual salary paid to any school employee be reduced at any time during an academic year.

Laws on the same subject matter must be interpreted in reference to each other. La. C.C. art. 13. Above, La. R.S. 17:422.6, applies to “any school employee” and prohibits reductions in the school employees’ “annual salary” or “hourly wage.” In contrast, La. R.S. 17:421.3(E)(1), the statute at issue here, applies to “any teacher” and applies only to that teacher’s “annual salary.” While each of these laws applies to a different set of employees, they each offer essentially the same protection. This Court today reaffirms its reasoning in Jefferson Federation of Teachers, supra by holding that La. R.S. 17:421.3(E)(1) prohibits this reduction in the actual amount paid to teachers.

Defendant argues second, that even if La. R.S. 17:421.3(E)(1) erected such a prohibition, the trial court should be affirmed because La. R.S. 17:422.5 implicitly repealed La. 17:421.3(E)(1). This argument is also incorrect. La. R.S. 17:422.5, provides in relevant part that:

Notwithstanding any other provision of law, no city or parish school board shall reduce the salary of any public elementary or secondary school teacher or any group thereof without first holding a public hearing for the purpose of allowing such teacher to appear and be heard at least thirty days before the reduction in salary shall occur....

Repeal is implied when a new law contains provisions that are contrary to, or irreconcilable with, those of the former law. La. C.C. art. 8. The defendant asserts |fiif La. R.S, 17:421.3(E)(1) is held to prohibit a reduction in teacher’s salary between successive academic years and within individual academic years, then La. R.S. 17:422.5 has no effect because even after a duly called hearing to reduce teachers’ pay, the pay of those teachers cannot be reduced. The defendant argues that this creates an irreconcilable conflict with the former law such that La. R.S. 17:422.5 should be deemed to have impliedly repealed La. R.S. 17:421.3(E)(1).

Repeals by implication are not favored in our jurisprudence and this Court will only find an implicit repeal of a law when there is an irreconcilable conflict between two' statutes and where there exists no possible construction that could give both provisions effect. City of New Orleans v. Louisiana Assessors’ Ret. & Relief Fund, 2005-2548 (La.10/1/07); 986 So.2d 1, 15. Here, no irreconcilable conflict exists between La. R.S. 17:421.3(E)(1) and La. R.S. 17:422.5. It is conceivable that a school board could schedule a pay increase to take place in a future academic year, and then before that academic year starts, call a meeting pursuant to La. R.S. 17:422.5 to reduce the amount of the future pay increase. Further, it is conceivable that a school board, after a duly called meeting, could reduce the amount of pay that certain teachers were scheduled to receive under its salary scale. For example, at a duly called meeting, a school board could reduce the scheduled salary for the next year’s incoming first year teachers. This would satisfy La. R.S. 17:422.5 because of the duly called meeting and it would not violate La. R.S. 17:421.3(E)(1) because there would be no reduction in the total amount of pay within an academic year or between two academic years. Given these plausible reconciliations of these two laws, this Court finds that La. R.S. 17:422.5 did not repeal La. R.S. 17:421.3(E)(1).

In light of the foregoing, this Court vacates the trial court’s judgment rendered on October 17th, 2011, denying the preliminary and permanent | injunctions requested by the plaintiffs, and remands this case for further proceedings consistent with this opinion.

VACATED AND REMANDED

      . La. R.S. 17:422.5 was repealed as of July 1, 2012 under Act 1 of the 2012 Legislature’s Regular Session.


author: JAMES F. McKAY III, Judge.

text:
    Sheila GUIDRY v. DOW CHEMICAL COMPANY and the State of Louisiana through the Department of Environmental Quality. Sheila Guidry v. Union Carbide Corporation, et al.
    Nos. 2012-C-0436, 2012-CA-0198.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 2012.

      Ron A. Austin, Austin & Associates, L.L.C., Harvey, LA, Jeffrey P. Berniard, Berniard Law Firm, Madro Bandaries, Madro Bandaries, P.L.C., Gregory P. Dileo, Julie M. Jochum, Gregory P. Dileo, APLC, J. Bart Kelly, III, Roderick Alven-dia, Jeanne K. Demarest, Law Office of Alvendia, Kelly & Demarest, L.L.C., New Orleans, LA, for Plaintiffs/Appellees.
    Mark C. Dodart, Evan R. Dicharry, Phelps Dunbar LLP, Neil C. Abramson, Nora B. Bilbro, Liskow & Lewis, New Orleans, LA, for Defendant/Appellant, Union Carbide Corporation.
    David M. Bienvenu, Jr., Lexi T. Holinga, Bienvenu, Bonnecaze, Foco, Viator, Holin-ga LLC, Baton Rouge, LA, for Defendant/Appellant, The Dow Chemical Corporation.
    Donesia D. Turner, Koeppel Traylor, New Orleans, LA, for Defendant/Appellant, Louisiana Department of Environmental Quality.
    (Court composed of Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JAMES F. McKAY III, Judge.

| jin this toxic exposure case, the defendants, Union Carbide Corporation, the Dow Chemical Company and the State of Louisiana through the Department of Environmental Quality, appeal the trial court’s granting of class certification. We affirm.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of July 7, 2009, tank 2310 at Union Carbide Corporation’s facility in Taft, Louisiana experienced an unexpected release of a chemical known as ethyl acrylate. In response, the St. Charles Parish Department of Emergency Preparedness initiated a road closure and evacuated residents within a two mile stretch east of the facility. Numerous residents and visitors in St. Charles, Orleans, and Jefferson Parishes also complained of odors and physical symptoms throughout the day.

On July 29, 2009, Sheila Guidry filed a lawsuit in Orleans Parish against Dow Chemical and the Department of Environmental Quality (DEQ). On July 30, 2009, she amended her petition to include class allegations on behalf of a proposed 12class. She amended her petition a second time on August 6, 2009, naming Union Carbide as a defendant.

On June 9, 2010, Ms. Guidry filed a motion for class certification, seeking to certify the class as follows:

Persons throughout Louisiana who were exposed to a release of any chemical by Defendants DOW and Union Carbide on or around July 7, 2009 and said release caused to that person personal injuries, emotional distress, loss of income, or the loss of the beneficial use, enjoyment, and exclusive possession of their property, or any other damages provable at the trial of this matter.

On May 12, 2011, prior to the class certification hearing, the plaintiffs filed a motion to substitute class representative. The trial court granted this motion and removed Ms. Guidry and replaced her with Ramona Alexander, Vanessa Wilson and Melissa Berniard.

The class certification hearing took place on May 16 through 17, 2011. Both sides presented evidence concerning what took place on July 7, 2009 and in its aftermath. The plaintiffs’ expert toxicologist, Dr. Patricia Williams testified that it was more probable than not that the symptoms alleged by the class were caused by the chemical release from the Union Carbide facility and that the symptoms of the class members that she sampled were consistent with her findings of general causation. The defense introduced samplings made by the DEQ. After considering the evidence presented, the trial court found that the plaintiffs had met their burden of proof and had established all of the elements of La. C.C.P. art. 591 et. seq. for class certification. Accordingly, the trial court granted class certification. It is from this judgment that the defendants now appeal.

I «DISCUSSION

On appeal, the defendants raise the following assignments of error: 1) the trial court committed legal error because predominance and superiority requirements of class certification are not satisfied as required by La. C.C.P. art. 591(B)(3) and well defined Supreme Court jurisprudence; 2) the trial court committed error in certifying a class in this matter because the requirements of numerosity and ascertainability are not satisfied— 1.e., the plaintiffs have not shown evidence of an identifiable group of people who have been aggrieved that comports with certification of a multi-parish class; and 3) the trial court committed legal error in certifying a class without adequate representatives.

In reviewing a judgment on class certification, the district court’s factual findings are subject to the manifest error standard, while the court’s ultimate decision regarding whether to certify the class is reviewed under the abuse of discretion standard. Price v. Martin, 2011-0853 (La.12/6/11), 79 So.3d 960, 968. “Implicit in this deferential standard is recognition of the essentially factual basis of the certification inquiry and of the district court’s inherent power to manage and control pending litigation.” Dupree v. Lafayette Ins. Co., 2009-2602 (La.11/30/10), 51 So.3d 673, 681. A trial court has wide discretion in deciding whether or not to certify a class. Id. (citing Chiarella v. Sprint Spectrum LP, 2004-1433 (La.App. 4 Cir. 11/17/05), 921 So.2d 106, 118). The reviewing court looks to whether the trial court’s findings are reasonable and not whether it would have |4decided the case differently. Howard v. Union Carbide Corp., 2009-2750 (La.10/19/10), 50 So.3d 1251. Furthermore, reviewing courts should also consider that any error to be made in deciding class action issues should be in favor of and not against maintenance of the class action, because a class certification order is subject to modification if later developments during the course of trial so require. Chalona v. Louisiana Citizens Property Ins. Corp., 2008-0257 (La.App. 4 Cir. 6/11/08), 3 So.3d 494, 500 (citing McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612, 620 (La.1984)).

Louisiana Code of Civil Procedure Article 591, which deals with the prerequisites for maintainable class actions; states:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.
B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dis-positive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final | finjunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4)The parties to a settlement request certification under Sub-paragraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.
C. Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class.

La. C.C.P. art. 591.

Predominance and Superiority

In their first assignment of error, the defendants contend that the trial court committed legal error by granting class certification because the predominance and superiority requirements were not satisfied. To meet the common cause requirement, each member of the class must be able to prove individual causation based on the same set of operative facts and law that would be used by any other member to prove causation. Price v. Martin, supra. In the instant case, each member of the class was a resident or visitor to St. Charles, Orleans, or Jefferson Parishes on July 7, 2009, and was subject to exposure of ethyl acrylate, which was | (¡released from the Union Carbide facility in Taft. The class members complained of odors and physical symptoms. Accordingly, the class members were injured by the same substance as a result of the same negligent conduct by the same defendants. Therefore, there exists a common nucleus of operative facts that justifies allowing the class to proceed.

An inquiry into predominance tests whether the proposed class is sufficiently cohesive to warrant adjudication by representation. Brooks v. Union Pacific R. Co., 2008-2035 (La.5/22/09), 13 So.3d 546, 554. Louisiana Code of Civil Procedure Article 591(B)(3) requires plaintiffs to establish only that either common issues of law or common issues of fact predominate over any issues affecting only individual members. In the instant case, members of the class all complained of an odor that was caused by the leak of ethyl acrylate at Union Carbide’s Taft facility on July 7, 2009. They all had similar physical conditions that ranged from respiratory problems to eye and skin irritation as well as nausea and anxiety. Based on these facts, the trial court properly concluded that both common questions of law and fact predominated.

When a common character of rights exists, a class action is superior to other available adjudicatory methods in effectuating substantive law, and promoting judicial efficiency and individual fairness. Judicial economy is a major factor to consider in determining whether a class action is superior to other methods of adjudication. Mathews v. Hixson Bros., Inc., 2003-1065 (La.App. 3 Cir. 2/4/04), 865 So.2d 1024. In the instant case, considering the large number of putative class members and the limited dollar amount of damages at issue, it would not be practical for the class members (or the courts) to pursue individual lawsuits versus 17the class action method. Accordingly, we find no error in the trial court’s finding that the predominance and superiority requirements were satisfied.

Numerosity and Ascertainability

In their second assignment of error, the defendants contend that the trial court erred in certifying a class because the requirements of numerosity and ascertain-ability were not satisfied. Louisiana Code of Civil Procedure Article 591(A) provides that the class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the eonclusiveness of any judgment that may be rendered in the case. See Chalona v. Louisiana Citizens Property Ins. Corp., 2008-0257 (La.App. 4 Cir. 6/11/08), 3 So.3d 494. In the instant case, the trial court defined the class as follows:

The class consists of those persons living or located in the following described geographic areas: starting at the northwest corner of the class boundary, included in postal zip code 70068 in St. John the Baptist Parish, proceeding eastward along Lake Pontchartrain to postal zip code 70065, located in Jefferson Parish, and further eastward to postal zip code 70117, located in Orleans Parish; and proceeding from the southwest corner of the class boundary, included in postal zip code 70057 in St. Charles Parish, then proceeding further southeast to postal zip code 70031, then proceeding further eastward to postal zip code 70094 in Jefferson Parish, and then east/northeast to postal zip code 70117 in Orleans Parish, and all areas included in between those points; and who were present in these locations for some time, from 4:30 am on July 7, 2009, until 3:30 pm on July 8, 2009, and who experienced the physical symptoms which include any or all of the following — eyes, nose, throat irritation, coughing, choking or gagging, or nausea, or headaches, dizziness, trouble breathing or other respiratory issues, as a result of their exposure to Ethyl Acrylate or other chemical substance released from tank 2310 at Union Carbide Corporation’s Taft, Louisiana Facility. Those persons living or located in those geographic areas and who experienced any of these physical symptoms will constitute the class and will be bound by the decision in this case.

|sThe above class definition adopted by the trial court is clearly ascertainable. It is limited to a particular geographic area and only includes individuals who suffered from certain symptoms.

Generally, a class action is appropriate whenever interested parties appear to be so numerous that separate suits would unduly burden courts and a class action would clearly be more useful and judicially expedient than other available procedures. Johnson v. Orleans Parish School Bd., 2000-0825, 2000-0826, 2000-0827, 2000-0828 (La.App. 4 Cir. 7/27/01), 790 So.2d 734. The determination for class certification is based in part upon the number of putative class members, but is also based upon considerations of judicial economy in avoiding a multiplicity of lawsuits, financial resources of class members, and the size of the individual claims. Husband v. Tenet HealthSystems Memorial Medical Center, Inc., 2008-1527, 2009-0002 (La.App. 4 Cir. 8/12/09), 16 So.3d 1220. In the instant case, because of the sheer size of the putative class and for the sake of judicial efficiency and economy as discussed earlier, the numerosity requirement is met.

Adequacy of Representation

According to La. C.C.P. art. 591(A)(3), the “typicality requirement for class certification is satisfied if the claims of the class representatives arises out of the same event, practice, or course of conduct giving rise to the claims of the other class members, and are based on the same legal theory.” Boyd v. Allied Signal, Inc., 2003-1840 (La.App. 1 Cir. 12/30/04), 898 So.2d 450, 464. In the instant case, the trial court determined that Ramona Alexander, Vanessa Wilson and Melissa Bern-iard constituted typical and adequate representation of the class, based upon the fact that the claims or defenses of the representative parties were typical of the claims or defenses of the class.

|flOn July 7, 2009, all three of the class representatives were located within the defined geographical boundaries of the class and had typical complaints of the constituency of the class. Melissa Berniard was at her home in Orleans Parish, postal zip code 70125. When she woke up that morning, she observed a foul smell and experienced irritation of the eyes, headaches, nausea and anxiety. Ramona Alexander was in Hahnville in St. Charles Parish. She smelled a strong odor which caused her to vomit. She also experienced a burning sensation in her eyes, throat irritation, skin irritation, and shortness of breath. Vanessa Wilson was initially in Waggaman in Jefferson Parish. When she awakened, a foul odor caused irritation to her eyes, nausea, skin irritations, coughing, sore throat and shortness of breath. She later went to Avondale, also in Jefferson Parish, where the smell persisted and her symptoms worsened. Finally, she went to St. Charles Parish, where she witnessed her mother vomit and complain of burning in her eyes.

Although the defendants allege that there is an apparent conflict with Melissa Berniard serving as a class representative for a class represented by her husband as class counsel, they offer no law or jurisprudence to support this allegation. The only cases they cite deal with a class counsel who also attempts to serve as a class representative. Accordingly, there is nothing to prevent Melissa Berniard from serving as a class representative in this case. As such, venue would be proper in Orleans Parish. Therefore, we find no error in the trial court’s finding that Melissa Berniard, Ramona Alexander and Vanessa Wilson were adequate representatives for the class as they all had similar complaints arising out of the same occurrence as the class in general.

| ^CONCLUSION

For the above and foregoing reasons, we find no abuse of discretion in the trial court’s granting of class certification in this case. Accordingly, we affirm its judgment.

AFFIRMED

      . Numerous other lawsuits involving this chemical release have been filed.

      . Dupree v. Lafayette Ins. Co., 2009-2602 (La. 11/30/10), 51 So.3d 673; Price v. Martin, 2011-0852 (La.12/6/11), 79 So.3d 960; and Alexander v. Norfolk Southern Corp., 2011— 2793 (La.3/9/12), 82 So.3d 1234.

      . Phillips v. Joint Legislative Committee on Performance and Expenditure Review, 637 F.2d 1014 (5th Cir. 1981); Zylstra v. Safeway Stores, Inc., 578 F.2d 102 (5th Cir.1978).


author: LOLLEY, J.

text:
    Joe D. MAGEE, et al., Plaintiffs-Appellees v. Wyeth Hardey WORLEY, et al., Defendants-Appellants. Howard C. Talley, et al., Plaintiffs-Appellees v. Wyeth Hardey Worley, et al., Defendants-Appellants.
    Nos. 47,565-CA, 47,566-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 21, 2012.
    Rehearing Denied Jan. 10, 2018.

      Ayres, Warren, Shelton & Williams, Shreveport, LA, by J. Todd Benson, Lee H. Ayres, Justin Nolan Myers, for Appellants.
    Billy Ray Pesnell, J. Whitney Pesnell, W. Alan Pesnell, Shreveport, LA, for Ap-pellees Joe D. Magee and Joann Fulmer Magee.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Bernard Slattery Johnson, Stephen Richard Yancey, II, for Appellees Jeffery Charles Talley, Amy Deville Adams Talley, Boby W. Adams, Ann E. Adams, Shirley Kay Kauffman Talley, Howard Charles Talley.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

| ,In this consolidated matter, the defendants, Wyeth Hardey Worley, Martha Jane Worley Jackson, Judith Eleanor Wolf, and Penuel Haynes Worley (the ‘Worleys”), appeal the judgment in favor of the plaintiffs: (1) Joe D. Magee and Joann Fulmer Magee, and (2) Howard Charles Talley, Shirley Kay Kauffman Talley, Jeffrey Charles Talley, Amy Deville Adams Talley, Boby W. Adams, and Anne E. Adams, granting the motions for summary judgment against the Worleys. For the following reasons, we conclude that an issue of material fact exists making summary judgment improper as a matter of law. We reverse the trial court’s grant of summary judgment and remand for further proceedings.

Substantive Facts

On January 2, 1958, Wyeth B. Worley, by Act of Sale conveyed a tract of land (176.6 acres) to the plaintiffs’ predecessor, Chester B. Magee (“C.B. Magee”), husband of June Timmons Magee. Worley reserved a 100% mineral servitude (the Worley Servitude”). The Worleys claim to still be owners of the Worley Servitude and dispute the plaintiffs’ claim that the servitude became extinguished by nonuse between 1987 and 1997. In 1993-94, the Worleys’ ownership in the Worley Servitude was held in trusts with Commercial National Bank (“CNB”) as Trustee of the Dessie Mae Worley Grantor Trust and as Trustee under the Will of Wyeth B. Wor-ley for the benefit of Dessie Mae B. Wor-ley (the Worley Trusts”).

Following the 1958 sale of the property, several transfers of ownership occurred until the property was ultimately acquired by Joe Magee and Joann Fulmer Magee (the “Magees”). In 1998, the Magees 12conveyed a portion of the property to Leon and Sharon Miletello and reserved a one-half mineral interest. The Miletellos in turn conveyed the property to Howard Charles Talley and Shirley Kay Kauffman Talley by Act of Sale dated January 9, 2003, with no reservation of minerals.

The following chronology of events regarding well activity on the property occurred:

Jan. 2, 1958: The Worley Servitude created; two wells already existed on the property, which ceased production in 1970 and 1972;
Nov. 26, 1959: The W.B. Worley 1-C Well (Serial No. 77593) spudded, but never produces;
May 12, 1973: The Worley #1 Well (Serial No. 142545) is spudded; well ceases production, is plugged and abandoned in 1981;
Mar. 23, 1983: The Worley #1 Well (Serial No. 185356) (the “Worley Well”) is spudded pursuant to a permit issued by the Department of Conservation to Vernon E. Faulconer, Inc. (“Faulconer”);
Nov. 1, 1987: The Worley Well ceases commercial production;
June 14, 1989: Faulconer and the other working interest owners execute an Assignment and Bill of Sale in which they assign the lease and interest in the Worley Well to C.B. Magee (the “Assignment”);
Nov. 15, 1993: The Worley Trusts executed a Declaration of Adoption of Operations by Another regarding Ma-gee’s operations in the Worley Well (the “Adoption Declaration”);
Oct. 26, 1999: PET SU57 Palmer No. 1 Well (Serial No. 223541) is spudded; well ceases production and is plugged and abandoned in 2001; and
laMar. 28, 2010: RE SU 60 Murphy 5H No. 1 Well (Serial No. 240650) is spudded.

Of specific pertinence regarding the Worley Well are the agreements that were made in connection with that well. On June 14,. 1989, an Assignment was entered into between Faulconer and C.B. Magee, which was recorded under Registry No. 510250 in Book 643, page 812 of the DeSo-to Parish, Louisiana conveyance records. Among other provisions, the Assignment stated:

1. The lease, well and equipment covered by this assignment are sold on an “as is” basis without any warranty whatsoever, either express or implied, and Assignee [i.e., C.B. Magee] shall have no recourse against Assignors for failure of title or for defects in the well and equipment.
* * * ⅝ * *
3. ... Assignee also obligates itself to comply and conduct its operations hereunder in accordance with all rules and regulations of the commissioner of Conservation of the State of Louisiana and all statutes, rules and regulations of any other governmental body or agency having jurisdiction over such matters.
4. ... Assignee, by the acceptance of this Assignment, agrees to promptly plug and abandon said well upon termination of operations on the lease acreage in a good, workmanlike manner and in accordance with the terms of said lease and/or Conservation Commission rules and regulations^]

Further, on November 15, 1993, an Adoption Declaration was executed by CNB and C.B. Magee and was filed on November 19, 1993, in Registry No. 535360 in Book 694, page 316 of the DeSo-to Parish, Louisiana Conveyance Records. That Adoption Declaration acknowledged the Assignment to C.B. Magee, and described the actions by Magee upon |4his “acquisition” of the well in 1989, noting that Magee’s “use of the gas from the well, for residential purposes, constitutes a use of the mineral servitude which continually interrupts the running of prescription, so long as the gas is used[.]” The Adoption Declaration noted that the Worley Trusts had become aware of C.B. Magee’s usage and wished to “adopt” the “operations of C.B. Magee in using gas from [the Worley Well] pursuant to the provisions of Articles 44, 45 and 46 of the Louisiana Mineral Code....”

Finally, on March 31, 1994, C.B. Magee signed a letter dated March 1, 1994, addressed to CNB, as trustee of the Worley Trusts. In that letter, Magee noted he was the surface owner of the property affected by a mineral servitude in favor of the Worley Trusts. He explained that he had run a “small line from [the Worley Well] to my house and barn and have used this gas from the well for residential purposes since that time, up until the present time.... ” He further stated in his letter his understanding that this residential use “continually interrupts the running of prescription,” and that he agreed to pay $5.00 per month to CNB, as trustee, for the gas used, effective April 1,1994.

Procedural Facts

Two separate actions were filed at the trial court, both naming the same Worley defendants. The plaintiffs in the first action were the Magees. The second action was filed by Howard Charles Talley, Shirley Kay Kauffman Talley, Jeffrey Charles Talley, Amy Deville Adams Talley, Boby W. Adams, and Anne E. Adams (the “Tal-leys”). Early in the litigation, the | .¡matters were consolidated at the trial court. The Magees sought a declaratory judgment against the Worley defendants, seeking to have the Worley Servitude released. The Magees and the Worleys filed cross motions for summary judgment. The trial court heard argument on the Worleys’ motion, but not the Magees’, whose motion had been improperly made before the Worleys had filed an answer to the petition. The trial court denied the Worleys’ motion for summary judgment.

Subsequently, the Magees refiled their motion for summary judgment, and a hearing was conducted. The trial court granted the Magees’ motion. Afterwards, the Talleys and the Worleys stipulated that if the Talleys “were to present to [the trial] Court the identical issue of whether that mineral servitude had prescribed, [the trial] Court would rule identically that the servitude terminated on or before November 1, 1997, as a result of the prescription of non-use[sic][.]” The Talleys and the defendants agreed to the stipulation “with the expectation that the [trial] Court [would] issue one judgment disposing of both of these consolidated cases on the same ground, i.e., the termination of the aforesaid mineral servitude on the ground of accrual of prescription for nonuse.” Ultimately, the trial court signed a judgment, granting summary judgment in favor of both the Magees and Talleys. This appeal by the Worleys ensued.

| (¡Discussion

There is only one assignment of error by the Worleys: did the trial court err in granting summary judgment on the issue of whether the Worley Servitude had terminated on the basis of prescription of nonuse, in light of the residential use of the gas from the Worley Well by the Ma-gees’ predecessor in title? Notably, the trial court opined in its written ruling “that residential use of gas alone is not sufficient to interrupt prescription.” (Emphasis added).

The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Cavet v. Louisiana Extended Care Hosp., 47,141 (La.App.2d Cir.05/16/12), 92 So.3d 1122. A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(B). The burden of proof on a motion for summary judgment remains with the movant. Samaha v. Rau, 2007-1726 (La.02/26/08), 977 So.2d 880.

The only issue before us is whether the residential usage of gas by C.B. Magee was sufficient to interrupt the running of prescription of nonuse on the Worley Servitude. A reservation of minerals is extinguished by ^prescription of nonuse if not exercised within ten years, and a mineral servitude owner then loses his rights unless some event or condition intervened during that time to interrupt the running of prescription. Cohort Energy Co. v. Caddo-Bossier Parishes Port Com’n, 37,449 (La.App.2d Cir.08/20/03), 852 So.2d 1174. An interruption takes place by the actual drilling or production operations of a well, such as the Worley Well, on the land burdened by the servitude. La. R.S. 31:30 and 36.

In this case, if sufficient production occurred during the 1993-94 time period as alleged by the Worleys, it allegedly served to interrupt the prescription of non-use between the time of the cessation of commercial production by the former lessee for the Worley Well in 1987 and commencement of the Palmer No. 1 Well in 1999. Although emphasis has been made on the sufficiency of the production by C.B. Magee (i.e., whether his residential usage of gas from the well was in good faith and for some beneficial purpose), we find significant the agreements made in connection with that usage and will address those first.

The issue of “By Whom a Use May Be Made” is contained in Subpart C of Chapter 4 of the Mineral Code (i.e., La. R.S. 31:42, et seq.). The pertinent statutes in Title 31 state:

§ 42. By whom a mineral servitude may be used
Except as provided in Articles 44 through 52, use of a mineral servitude must be by the owner of the servitude, his representative or employee, or some other person acting on his behalf.
|s§ 43. When a person is acting on behalf of servitude owner
A person is acting on behalf of the servitude owner only when there is a legal relationship between him and the servitude owner, such as co-ownership or agency, or when there is clear and convincing evidence that he intended to act for the servitude owner. Silence or inaction by the servitude owner will not suffice to establish that a person is acting on behalf of the servitude owner. § 44. Adoption of operations by another
A mineral servitude owner may adopt operations or production by a person other than those designated by Article 42 if his servitude includes the right to conduct operations of the kind involved.
⅜ ⅜ * ⅜ ⅝ ⅜
§ 46. Procedure of adoption
Adoption of the operations of another is accomplished when the servitude owner files for registry in the conveyance records of the situs of his servitude an instrument describing the land subject to the servitude, identifying the operations, specifying the date on which the operations commenced, and expressing the intent to adopt them as his own.

Here, the use of the Worley Well was assigned to C.B. Magee by certain holders of the lease, primarily Faulconer, on June 14, 1989. Although the continued existence of the Faulconer lease in 1989 was questionable after the two-year lapse of commercial production, Magee began using the Worley Well. Significantly, the Assignment was recorded in the public records of DeSoto Parish. Additionally, the Adoption Declaration further substantiated the fact of C.B. Magee’s use of the Worley Well, and possible exercise of rights under the Worley Servitude. The Worley Trusts acknowledged that C.B. Magee: had run a “small line” |9from the Worley Well to his house; was using the well for residential purposes; and, intended to interrupt prescription by his usage. The Adoption was filed in the public records of DeSoto Parish, Louisiana and adhered to the requirements stated in La. R.S. 31:46. These agreements are significant to serve notice of some operations on the surface.

Turning to the issue of the sufficiency of the use, La. R.S. 31:86 provides, “Prescription of nonuse is interrupted by the production of any mineral covered by the act creating the servitude. The interruption occurs on the date on which actual production begins and prescription commences anew from the date of cessation of actual production.” Louisiana R.S. 31:38 states, “To interrupt prescription it is not necessary that minerals be produced in paying quantities. It is necessary only that minerals actually be produced in good faith with the intent of saving or otherwise using them for some beneficial purpose.”

In considering whether C.B. Magee’s use and production of the well was sufficient to interrupt prescription of the servitude for nonuse, the trial court relied on the holding in Pan Am. Petroleum Corp. v. O’Bier, 201 So.2d 280 (La.App. 2nd Cir. 1967), for the proposition that residential usage is insufficient to interrupt prescription. However, although O’Bier has facts 110similar with this case, we agree with the appellants that O’Bier can be easily distinguished and is not controlling in this case.

O’Bier was rendered in 1967, prior to the adoption of Louisiana’s Mineral Code in 1974. Thus, the O’Bier court did not have the Mineral Code to rely upon for authority, but instead considered analogously the applicable Civil Code articles pertaining to predial servitudes. Notably, none of the articles on adoption of usage now set forth in the Mineral Code, particularly Article 46, had parallels to the Civil Code articles for predial servitudes at the time O’Bier was written.

In O’Bier, the mineral servitude owners contended that their interest had been preserved against the plea of prescription for nonuse, primarily by the production of gas from a shut-in well for residential use by the surface owner. Unlike the case at hand, no recorded adoption declaration was ever filed by the servitude owner as no such procedure for adoption was in our law at that time. Concluding that such use did not serve to interrupt prescription by nonuse, the O’Bier court noted that “the use contemplated therein must be accompanied by the intent to relate the act to the exercise of the servitude.” Id. at 284. Although the facts in O’Bier, fail to show that there was intent by the servitude owner to relate the act of the residential use of gas to their servitude, that does not appear to be the situation in the|ncase sub judice, because of the Adoption Declaration. We therefore disagree with the trial court that O’Bier is controlling in this case.

The crucial distinction in O’Bier to the facts of this case is that the use of the Worley Well had been assigned to C.B. Magee, the Assignment had been recognized by the Worley Trusts, and Magee’s production of the gas from the well on the Worley Servitude was purportedly adopted as evidenced by the Adoption Declaration. Both of those documents had been recorded in the public records, putting third parties on notice that Magee had exercised an interest in the subject well and was purportedly deriving some benefit from it with the agreement of the Worley Trusts. Clearly, not only were the pertinent parties informed of C.B. Magee’s activity at the well, but third parties were also put on notice by the recordation of the Assignment and the Adoption Declaration. This was not the same sort of surreptitious and unknown activity that had occurred in O’Bier.

Though O’Bier is not controlling, the measure of the sufficiency of C.B. Magee’s production remains. The test of that sufficiency under Article 38 of the Mineral Code includes the factual consideration of good faith applicable to both C.B. Magee and the Worley Trust and the beneficial purpose of the production endeavor. These fact issues require trial on the merits, as material fact issues are apparent from the record for this summary judgment.

[^Conclusion

For the foregoing reasons, we reverse the judgment granting summary judgment in favor of the appellees: Joe D. Magee and Joann Fulmer Magee; and, Howard Charles Talley, Shirley Kay Kauffman Talley, Jeffrey Charles Talley, Amy Deville Adams Talley, Boby W. Adams, and Anne E. Adams. This consolidated matter is remanded to the trial court for further proceedings, and all costs of appeal are assessed to the Magees and the Talleys.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

APPLICATION FOR REHEARING

Before BROWN, CARAWAY, MOORE, LOLLEY and SEXTON, JJ.

Rehearing denied.

BROWN, C.J. and SEXTON, J., would grant rehearing

      . The parties agree on this fact, which is confirmed by the records of the Office of Conservation for the State of Louisiana, which show that the last actual reported production occurred in October 1987.

      . Both units for the last two wells drilled in 1999 and 2010 included the entire 176.6 acres.

      . The allegations by the Talley plaintiffs are substantially the same as those made by Ma-gee plaintiffs, so for convenience, reference herein is made only to the Magee plaintiffs’ litigation,

      . C.B. Magee’s March 1994 letter to the Wor-ley Trust regarding the subject use specifically acknowledges the Worley Servitude and his intent to interrupt prescription. Had Magee actually owned the land upon which the Wor-ley Well was situated, this letter may have served to interrupt prescription in and of itself. See La. R.S. 31:54, et seq. The record indicates, however, that the portion of the 176 acre tract where the well was located had been previously conveyed by C.B. Magee to his son.

      . In the Introduction to the Mineral Code by the Louisiana State Law Institute, it states, "The Mineral Code is designed in large measure to supplant by way of Codification the extensive jurisprudence that developed in this area of the law.”