author: SAUNDERS, Judge.

text:
    XXI OIL & GAS, LLC v. HILCORP ENERGY COMPANY.
    No. 13-410.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      Guy E. Wall, Wall, Bullington & Cook, LLC, Harahan, LA, for Plaintiff/Appellee, XXI Oil & Gas, LLC.
    Andrew J. Halverson, Milling Benson Woodward, L.L.P., Lafayette, LA, for Defendant/Appellant, Hilcorp Energy Company.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges.
   SAUNDERS, Judge.

1 iThis appeal arises from a partial summary judgment granted in favor of XXI Oil & Gas, LLC (hereinafter “XXI”), the lessee of a number of mineral leases in a drilling unit operated by Hilcorp Energy Company (hereinafter “Hilcorp”). In granting the motion, the trial court found that Hilcorp should be penalized under La.R.S. 30:103.2 for failing to provide a sworn, detailed, itemized statement of costs to XXI as required by La.R.S. 30:103.1 (hereinafter “the statute”). Hil-corp now appeals. For the reasons discussed herein, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 11, 2011, Hilcorp recomplet-ed the well in the drilling unit at issue and began producing. In February 2011, XXI acquired a number of mineral leases within the unit, representing about twenty percent of the unit.

On April 21, 2011, XXI sent a letter by certified mail, return receipt requested, to Hilcorp requesting that Hilcorp provide:

an initial report containing the costs of recompleting said unit well, or quarterly reports containing the total amount of oil, gas, or other hydrocarbons produced from the lands covered by XXI’s mineral rights during the previous quarter, the price received from any purchase of unit production, quarter operating costs and expenses or any additional funds expended to enhance or restore the production of said well, ... an initial report containing the costs of recompleting the unit well with detailed supporting invoices, ... the total amount of oil, gas, or other hydrocarbons produced from the unit, the price received from any purchaser of unit production, the operating costs and expenses, and any additional funds expended to enhance or restore the production of the unit well.

Hilcorp had not yet provided the information required by the statute.

On the same day, before receiving XXI’s letter, Hilcorp sent XXI a letter, attaching an authority for expenditure (“AFE”) report, which included cost estimations and an invoice for $40,737.33 described as “cash advance on actuals through 2/2011.” The letter explained that the unit well had been “shut-in” since 12March 28, 2011, and would be returned to production shortly. The AFE, dated January 26, 2011, contains itemized costs to recomplete the well and states that the well had casing damage and would not flow. It includes no other revenue information or amounts. The statement does include specific estimations of costs of transportation ($500), miscellaneous ($20,000), contingencies ($25,525), perforating ($64,000), supervision/consultation ($5,000), well control insurance ($1,000), and road and location costs ($500,000), totaling $616,025 of intangible completion costs. The AFE was signed by Foster Hagen of XXI on May 20, 2011, under a line reading “Participant Approval.” The statement was also signed by two representatives of Hilcorp under a line reading “Hilcorp Energy Company Approvals.”

On May 20, 2011, XXI notified Hilcorp that it elected to participate in the recom-pleted unit well. On June 13, 2011, XXI sent Hilcorp a second letter stating that because Hilcorp had failed to provide XXI with a “sworn, detailed statement of revenues and expenses attributable to the above referenced well within 90 days of its completion and within thirty days of receipt of my April 21, 2011 letter,” Hilcorp could not deduct the costs of completing or operating the well from XXI’s share of the revenues. Still, Hilcorp did not respond with a statement of costs in compliance with the statute.

XXI filed suit against Hilcorp on September 9, 2011, asserting a claim under La.R.S. 30:103.1 and La.R.S. 30:103.2. Hil-corp responded by filing a peremptory exception of no cause of action, which was denied by the trial court and affirmed by this court.

XXI filed a motion for partial summary judgment on the issue of whether it is entitled to the penalty for noncompliance with the statute, namely that operation costs should not be deducted from XXI’s share of revenues. The trial court held a | shearing and granted the motion in favor of XXI. The trial court noted in its oral reasons for its judgment that Hilcorp did not comply with the statute because the statement of costs it submitted to XXI was neither sworn nor detailed. In its judgment, the trial court declared that XXI “shall receive its share of the revenue from the Well without deduction of costs of drilling operations.”

ASSIGNMENTS OF ERROR

1. The trial court erred in granting XXI’s motion for partial summary judgment, where a genuine issue of material fact existed regarding whether the mineral leases that XXI acquired have been validly executed by the mineral owners of each tract of land covered by XXI’s mineral leases.

2. The trial court erred in refusing to deny XXI’s motion for partial summary judgment by mechanically applying the technical formalities of La.R.S. 30:103.1, a penalty statute, against Hilcorp without determining whether the intent and purpose of the statute has been satisfied.

ASSIGNMENT OF ERROR # 1

This court reviews summary judgments de novo. Thibodeaux v. Lafayette Gen. Surgical Hosp., 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544. Summary judgment “is designed to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2). A motion for summary judgment “shall be rendered forthwith 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 mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). In addition, “[interpretation of a statute is a question of law that may be decided by summary judgment.” State Farm Mut. Auto. Ins. Co. v. U.S. Agencies, L.L.C., 05-728, p. 3 (La.App. 1 Cir. 3/24/06), 934 So.2d 745, 747, writ denied, 06-933 (La.6/16/06), 929 So.2d 1288.

The statute at issue, La.R.S. 30:103.1, reads in pertinent part as' follows:

A. Whenever there is included within a drilling unit, as authorized by the commissioner of conservation, lands producing oil or gas, or both, upon which the operator or producer has no valid oil, gas, or mineral lease, said operator or producer shall issue the following reports to the owners of said interests by a sworn, detailed, itemized statement:
(1) Within ninety calendar days from completion of the well, an initial report which shall contain the costs of drilling, completing, and equipping the unit well.
(2) After establishment of production from the unit well, quarterly reports which shall contain the following:
(a) The total amount of oil, gas, or other hydrocarbons produced from the lands during the previous quarter.
(b) The price received from any purchaser of unit production.
(c) Quarterly operating, costs and expenses.
(d) Any additional funds expended to enhance or restore the production of the unit well.

The related penalty statute, La.R.S. 30:103.2, reads as follows:

Whenever the operator or producer permits ninety calendar days to elapse from completion of the well and thirty additional calendar days to elapse from date of receipt of written notice by certified mail from the owner or owners of un-leased oil and gas interests calling attention to failure to comply with the provisions of R.S. 30:103.1, such operator or producer shall forfeit his right to demand contribution from the owner or owners of the unleased oil and gas interests for the costs of the drilling operations of the well.

Hilcorp contends that XXI has not proven that its mineral leases have been validly executed by the owners of each tract of land. Thus, partial summary judgment as to whether Hilcorp is subject to the statutory penalty should be precluded by this issue of material fact, Hilcorp argues. While Hilcorp asserts that the validity of the leases is a required element for the statute to apply, it offers no supporting authority for this contention. Moreover, the issue of the validity of the |fileases was not before the trial court when it granted the partial summary judgment now on appeal, and the trial court has not ruled on this issue. A decision on appeal of this issue would be premature. In fact, should the trial court find that XXI is not the owner of validly executed leases and XXI receives no revenues, it would receive no revenues from which to deduct production costs. For the purpose of this appeal, the issue of the validity of the leases is not relevant; whether XXI’s lessors have good title is an issue suitable for a trial on the merits, and need not influence summary judgment on the issue of whether Hilcorp failed to comply with the statute.

ASSIGNMENT OF ERROR # 2

Hilcorp admits that it did not comply with the technical requirements of the statute, but asserts that it achieved the intent and purpose of the statute by submitting a statement of costs in the AFE. Hilcorp suggests that since XXI elected to participate- in the well after receiving the AFE, the AFE constitutes a statement of costs that satisfies the intent and purpose of the statute, rendering technical compliance with the statute unnecessary. This suggestion amounts to proposing that XXI waived its statutory right to receive a sworn, detailed, itemized statement of costs by electing to participate in the well after receiving the AFE. Strict construction leaves no room for such an argument. The statute is unambiguous in its requirements, and XXI’s election to participate does not alter the clear requirements of the statute.

The first point of this court’s analysis must be the language of the statute. Where the text of a statute is unambiguous, it is not the role of this court to determine its purpose, but rather to apply the law as it is written. “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 | Bsearch of the intent of the legislature.” La.Civ.Code art. 9. Here, we must employ strict construction to determine whether Hilcorp’s statement of costs complies with the statute.

The United States Fifth Circuit Court of Appeals interpreted this statute in an unpublished opinion, Brannon Props., LLC v. Chesapeake Operating, Inc., No. 12-30306, 2013 WL 657781 (5th Cir. Feb. 21, 2013), wherein the court found that a statement of costs was not adequately detailed under the statute where each cost was described only as “tangible” or “intangible.” The court noted that “[a]lthough the statute does not specify which details a report must contain, that lack of precision does not necessarily make the provision ambiguous.” Id. The court concluded that the term “detailed” in the statute is unambiguous given the context of a report informing the unleased mineral owner of the costs. “The statute clearly connects the costs reported to the benefits received in exchange. The ‘detailed’ requirement, therefore, must mean that the report has to relate the cost to the benefit: it must tell the unleased mineral owner what it is getting for its money.” Id. (internal citations omitted).

We agree with the Fifth Circuit that the requirement that the statement be detailed is not ambiguous. We find there is no ambiguity in the statute, and the appellant presents no argument to the contrary. Accordingly, we hold that the statute is unambiguous, and thus its language is subject to strict construction.

This court notes that the list of cost estimations in the AFE provided by Hil-corp is, in large degree, lacking detail that might seem relevant to such a document. Inasmuch as this is a summary judgment proceeding, the court pretermits the question of whether Hilcorp’s statement is adequately detailed, as it is not necessary to decide the case.

|7The requirement that the statement be sworn invites no inquiry into the intent and purpose of the statute. A statement is either sworn or it is not. It is clear from the record that Hilcorp’s statement was not. Regardless of whether Hilcorp’s statement substantially supplied adequate information, the statute makes clear, without any additional qualifying or modifying language, that the statement must be sworn. XXI has a serious stake in the reliability of the statement of costs. An unsworn statement leaves mineral lessees such as XXI vulnerable to a degree that this statute seeks to prevent. For that reason, the requirement that such a statement must be sworn shall be enforced. The statement submitted by Hilcorp did not comply with this requirement.

CONCLUSION

The trial court ruled, and we agree, that Hilcorp’s actions and omissions amounted to a substantial breach of the disclosure requirements of La.R.S. 30:103.1. The statement of costs Hilcorp sent to XXI was not sworn, and thus was inadequate under this statute. For this, La.R.S. 30:103.2 forfeiture is the clear remedy. In conclusion, we affirm the trial court’s ruling granting partial summary judgment. All costs of this appeal are assessed to Appellant, Hilcorp.

AFFIRMED.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    William Michael HANLON, Jr., et al, Plaintiffs-Respondents v. MONSANTO AG PRODUCTS, LLC, Delta Pine and Land Company, Pharmacia Corporation, Tensas Farm Services, Inc., Helena Chemical Company, and Crop Production Services, Inc., Defendants-Applicants.
    No. 48,010-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 9, 2013.

      Liskow & Lewis, New Orleans, by James F. Shuey, Joseph I. Giarrusso, III, Tiffany L. Delery, Kindall C. James, for Defendant-Applicant, Monsanto Company.
    Kean Miller, LLP, Baton Rouge, by Esteban Herrera, Jr., Mark A. Marionneaux, for Defendant-Applicant, Helena Chemical Co.
    Hudson, Potts & Bernstein, Monroe, by Robert M. Baldwin, Johnny R. Huckabay, II, for Defendant-Applicant, Jimmy Sanders, Inc.
    Thompson Coburn, LLP by Jeffrey A. Masson, for Defendant-Applicant, Crop Production Services, Inc.
    Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, III, Monroe, Clint R. Hanchey, for Defendant-Applicant, Tensas Farm Services, Inc.
    James E. Paxton, Tallulah, John D. Cri-gler, Jr., Monroe, Bishop & Moberley, Tal-lulah, by Edwin Moberley, for Plaintiffs-Respondents, William M. Hanlon, Jr., et al.
    Before STEWART, MOORE and PITMAN, JJ.
   STEWART, J.

1 TThe defendants in this matter filed exceptions of prematurity and sought a stay pending arbitration of the plaintiffs’ claims as required by an arbitration provision in written agreements signed by each of the plaintiffs. The trial court denied the exceptions of prematurity and the motions to stay the proceedings. After this court denied the defendants’ writs, they sought relief before the Louisiana Supreme Court, which granted writs and remanded the matter to this court for briefing, argument, and a full opinion. Hanlon v. Monsanto Ag Products, LLC, 2013-0169 (La.3/1/13), 108 So.3d 781. For the reasons explained in this opinion, we find the arbitration provisions enforceable and reverse the trial court’s rulings on the exceptions of prematurity and motions to stay.

FACTS

The plaintiffs are cotton farmers in the parishes of Madison, Tensas, Catahoula, and East Carroll. They filed a redhibition action claiming that cotton seed known as Delta Pine 0949 B2RF planted during the 2010 season was defective. The defendants, who are referred to collectively in this opinion as “Monsanto,” include the alleged manufacturers of the seed, namely, Monsanto Ag Products, LLC, Delta Pine and Land Co., Pharmacia Corp., and the alleged sellers of the seed, namely, Tensas Farm Services, Inc., Helena Chemical Company, and Crop Production Services, Inc.

In response to the redhibition action, Monsanto filed an exception of prematurity, or alternatively, a motion to stay. Monsanto asserted that each 12of the plaintiffs had signed a written “Technology / Stewardship Agreement” (hereinafter the “Technology Agreement” or “the agreement”), which includes an arbitration provision that requires claims, including claims against sellers, related to the performance of the cotton seed to be resolved through binding arbitration. Copies of the agreement signed by the plaintiffs were admitted into evidence. Monsanto explained that it requires all growers who purchase seeds containing its patented transgenic traits to sign the agreement. In support of its exception and motion, Monsanto showed that 16 of the plaintiffs had signed the agreement in 2010; some of these had also signed the agreement in other years as well. Eleven plaintiffs had signed the 2001 agreement, and some of these had also signed in either 2011 or 2012. Monsanto asserted that the agreement has contained an arbitration provision since 2001 and that the 2010 version is typical of preceding versions.

Monsanto’s 2010 agreement consisted of four pages. The arbitration provision, which is located on the bottom right of the first page, reads as follows:

Is2. BINDING ARBITRATION FOR COTTON-RELATED CLAIMS MADE BY GROWER:
Any claim or action made or asserted by a cotton Grower (or any other person claiming an interest in the Grower’s cotton crop) against Monsanto or any seller of cotton Seed containing Monsanto Technology arising out of and / or in connection with this Agreement or the sale or performance of the cotton Seed containing Monsanto Technology other than claims arising under the patent laws of the United States must be resolved by binding arbitration. The parties acknowledge that the transaction involves interstate commerce. The parties agree that arbitration shall be conducted pursuant to the provisions of the Federal Arbitration Act, 9 U S C Sec 1 et seq and administered under the Commercial Dispute Resolution Procedures established by the American Arbitration Association (“AAA”). The term “seller” as used throughout this Agreement refers to all parties involved in the production, development, distribution, and/or sale of the Seed containing Monsanto Technology. In the event that a claim is not amicably resolved within 30 days of Monsanto’s receipt of the Grower’s notice required pursuant to this Agreement any party may initiate arbitration. The arbitration shall be heard in the capital city of the state of Grower’s residence or in any other place as the parties decide by mutual agreement. When a demand for arbitration is filed by a party, the Grower and Monsanto / sellers shall each immediately pay one half of the AAA filing fee. In addition, Grower and Monsanto/sellers shall each pay one half of AAA’s administrative and arbitrator fees as those fees are incurred. The arbitrator(s) shall have the power to apportion the ultimate responsibility for all AAA fees in the final award. The arbitration proceedings and results are to remain confidential and are not to be disclosed without the written agreement of all parties, except to the extent necessary to effectuate the decision or award of the arbitrator(s) or as otherwise required by law.

Opposing the exception of prematurity and motion to stay, the plaintiffs argued that the arbitration provision is unenforceable because it is a contract of adhesion to which they did not consent and that it is unconscionable under the factors set forth in Aguillard v. Auction Management Corp., 2004-2804 (La.6/29/05), 908 So.2d 1. In support of their opposition, affidavits from 25 of the plaintiffs were introduced. Each affidavit averred that the plaintiffs signed the agreements with the ^understanding that they had to do so to purchase the seed at issue, that no one advised them of any terms in the agreement, and that they did not understand or consent to the arbitration provision. The affidavits further stated that the plaintiffs had no choice but to sign the agreement and that to “the best of [their] knowledge, local suppliers only sell corn, cotton, or soybean seed that contains Roundup Ready technology.”

On September 11, 2012, the trial court conducted a hearing on Monsanto’s exception and motion to stay. Following arguments by the parties, the trial court overruled the exception upon finding the arbitration provision unenforceable and “almost unconscionable.” Noting that its decision was based on the Aguillard factors, the trial court found a lack of mutuality based on the limited remedy provided growers in the agreement and the superior bargaining strength of Monsanto relative to the cotton growers. Judgment denying the exception and motion to stay was rendered on October 1, 2012. Monsanto sought supervisory review of the trial court’s ruling, and the matter is now before this court for review as ordered by the supreme court.

DISCUSSION

In two assignments of error, Monsanto asserts that the trial court erred in (1) disregarding Coleman v. Jim Walter Homes, Inc., 2008-1221 (La.3/17/09), 6 So.3d 179, which applies when it is claimed that an arbitration provision is unenforceable due to an error of consent, and (2) misapplying the Aguillard factors to wrongly determine that the arbitration clause is “almost unconscionable.” •

¡¡Applicable Law:

Arbitration is a substitute for litigation whose purpose is to settle the parties’ differences in a fast, inexpensive manner and in a tribunal chosen by them. Tubbs Rice Dryers, Inc. v. Martin, 44,800 (La.App.2d Cir.2/24/10), 33 So.3d 926, recons. denied; 2010-1105 (La.4/29/11), 62 So.3d 105. When a party to a lawsuit claims that'the matter is subject to arbitration, it must be determined whether there is a valid agreement to arbitrate between the parties and whether the dispute falls within the scope of the arbitration agreement. Id. Here, the plaintiffs admit that their claims fall within the scope of the arbitration clause in the agreements signed by them. The issue is whether there is a valid agreement to arbitrate in light of the plaintiffs’ claim that the arbitration clause is adhesionary and unenforceable.

Aguillard, supra, is the seminal case in this state addressing the validity of an arbitration agreement in a standard form contract under a “contract of adhesion” analysis. The facts differ substantially from those in this matter. In Aguillard, supra, a plaintiff attending a real estate auction was required to sign an “Auction Terms & Conditions” document before commencement of the auction. That document contained an arbitration clause. The plaintiff submitted the high bid at the auction and was then required to then sign an “Auction Real Estate Sales Agreement” when he submitted his check for ten percent of the sales price. The plaintiff subsequently filed suit to enforce this agreement after the seller rejected his bid. In response, the defendant sought to enforce the arbitration clause in- |6the “Auction Terms & Conditions” document and to obtain a stay of the lawsuit pending arbitration. The trial court denied the stay and the appellate court affirmed that ruling on the grounds that the arbitration clause was adhesionary and lacked mutuality. After granting writs, the supreme court reversed and stayed the proceedings pending arbitration.

The court began its analysis by recognizing that Louisiana law, like federal law, favors arbitration. As provided in La. R.S. 9:4201, arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The court noted that a contract of adhesion is generally a standard contract in printed form, usually in a small print, that is prepared by a party with superior bargaining power and presented to a weaker party for adherence or rejection. The court refused to recognize all standard form contracts as adhesionary, but rather found that a standard form is a “possible indicator of adhesion.” Aguillard, 04-2804, p. 11; 908 So.2d at 10. Summarizing, the court explained:

[A] contract is one of adhesion when either its form, print, or unequal terms call into question the consent of the non-drafting party and it is demonstrated that the contract is unenforceable, due to lack of consent or error, which vitiates consent. Accordingly, even if a contract is standard in form and printed in small font, if it does not call into question the non-drafting party’s consent and if it is not demonstrated that the non-drafting party did not consent or his consent is vitiated by error, the contract is not a contract of adhesion.

Aguillard, 04-2804, p. 12, 908 So.2d at 10.

Considering the strong presumption in favor of arbitration under both state and federal law, the supreme court determined that the appellate court erred as a matter of law in finding the arbitration clause adhesionary. In |7making this determination, the supreme court considered the physical characteristics and distinguishing features of the arbitration clause, the mutuality or lack thereof in the arbitration agreement, and the relative bargaining position of the parties. The court noted that the arbitration clause was in “relatively small print” but that neither the print nor font size differed from other clauses in the agreement. The clause was in a two-page contract with each paragraph separated by double spacing and was neither distinguished nor concealed in any way. With regard to mutuality, the court noted that the arbitration clause severely limited both parties’ right to litigate and that the defendants did not “reserve to themselves the right to litigate any issue arising from the contract.” Aguillard, 04-2804, p. 21, 908 So.2d at 16. Finally, the court did not find a sufficient difference in the parties’ bargaining positions so as to justify applying the contract of adhesion principle to the arbitration clause. The real estate auction was not the type of necessary transaction that a party would be compelled to enter; if the plaintiff did not agree with the terms of the contract, including arbitration, he could have attempted to negotiate or refused to participate. The court also recognized the freedom of contract and the principle that “a party who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain it to him.” Aguillard, 04-2804, p. 22; 908 So.2d at 17.

No contract of adhesion argument or analysis was made in Coleman, supra, which Monsanto argues should have been applied by the trial court |sto resolve this matter. After negotiating a contract for the building of a home, the plaintiff was presented with and signed an arbitration agreement at the closing. When the plaintiff filed a lawsuit for damages incurred during construction, the defendant sought to compel arbitration. The plaintiff argued in opposition that the agreement was unenforceable due to error and that he did not understand what he was giving up by signing the arbitration agreement. Both the trial court and appellate court found in favor of the plaintiff on the grounds that his consent was vitiated by error. However, the supreme court found the arbitration agreement to be valid and enforceable.

Citing La. C.C. art. 1949, the court noted that the building of a home, rather than the procedure for future litigation concerning the contract, was the principal cause of the contract between the parties. Thus, any unilateral error by the plaintiff regarding the arbitration agreement was not sufficient to vitiate his consent. Coleman, supra. The court noted that the arbitration provision was clear, unambiguous, and not hidden in small type. As in Aguillard, supra, the Coleman court noted that a party who signs a written agreement is presumed to know its contents. The court found that the plaintiff signed the agreement that clearly provided for arbitration and that he could not avoid its obligations by claiming he did not read the agreement or understand its contents.

\ (Analysis:

Monsanto asserts that the trial court erred in failing to apply Coleman, supra, which would resolve the matter and require enforcement of the arbitration agreement. We agree that the principles of Coleman, supra, favor enforcement of the arbitration clause at issue. Any alleged error by the plaintiffs as to the arbitration requirement does not concern the cause of the contract, which was the purchase of the cotton seed with Monsanto’s patented technology. While plaintiffs’ affidavits state that they “had no choice but to sign the agreement” as required to purchase the cotton seed, nothing in their affidavits indicates that the procedure for any future litigation was a cause, or even concern, in signing the agreement.

The plaintiffs state in their affidavits that they were not advised of the terms or content of the agreement and that they did not consent to or understand the arbitration provision. However, as emphasized in both Coleman, supra, and Aguillard, supra, a party who signs a written document is presumed to know its contents and cannot escape its obligations by claiming that the other party did not explain it or that he failed to read it or understand it. The plaintiffs, many of whom signed more than one agreement over the years, cannot avoid enforcement of the arbitration provision on basis that they did not understand it or that it was not explained to them.

While Coleman, supra, favors enforcement of the arbitration provision, we do not agree it that it alone mandates reversal of the trial court. There was no argument in Coleman, supra, that the arbitration | inprovision was adhesionary and that case did not involve a contract of adhesion analysis as in Aguillard, supra. As stated in Aguillard, the real issue in a contract of adhesion analysis is one of consent— whether the “party truly consented to all the printed terms.” Aguillard, 04-2804, p. 12, 908 So.2d at 10. As explained by the court:

Consent is called into question by the standard form, small print, and most especially the disadvantageous position of the accepting party, which is further emphasized by the potentially unequal bargaining positions of the parties. An unequal bargaining position is evident when the contract unduly burdens one party in comparison to the burdens imposed upon the drafting party and the advantages allowed to that party. Once consent is called into question, the party seeking to invalidate the contract as adhesionary must then demonstrate the non-drafting party either did not consent to the terms in dispute or his consent was vitiated by error, which in turn, renders the contract or provision unenforceable.

Id., footnotes omitted and emphasis added. Thus, even if the plaintiffs cannot show that their consent was vitiated by error, a consent issue remains if the agreement and / or arbitration provision is found to be adhesionary. If so, the issue is whether the plaintiffs truly consented to the arbitration provision. The plaintiffs argue that they did not give meaningful consent because they had no choice but to sign the Technology Agreement. Because the plaintiffs raise a contract of adhesion issue, we will examine the arbitration provision under the factors addressed in Aguillard, supra.

We must first examine the physical features and distinguishing characteristics of the arbitration clause. Monsanto argues that nothing in the format, print or terms of the Technology Agreement calls into question the plaintiffs’ consent. However, the plaintiffs contend that the small print and lack of distinguishing features call into question their consent to arbitration.

|nThe plaintiffs rely heavily on Sutton Steel & Supply, Inc. v. BellSouth Mobility, Inc., 2007-146 (La.App.3d Cir.12/12/07), 971 So.2d 1257, which applied Aguillard, supra, to affirm the trial court’s refusal to decertify a class action and its finding that an arbitration provision in BellSouth’s standard consumer contract was adhesion-ary and unenforceable. The court in Sutton Steel, supra, found the arbitration clause “virtually unreadable” and the font size “exceedingly” and “decidedly” unreasonable. Sutton Steel, 07-146, p. 12, 971 So.2d at 1266. Moreover, the arbitration clause was not distinguished from others in the contract. It was not set off by double spacing and the “sheer volume of the words” contained in the contract exacerbated “the difficulty of directing one’s attention to the arbitration clause therein.” Id.

Fairly considering Monsanto’s Technology Agreement, we cannot reach the same conclusion as the Sutton Steel court regarding the characteristics and distinguishing features of the arbitration clause at issue. Our review of the various contracts entered into evidence at the hearing shows that the Technology Agreement is a standard form, small-print variety of contract. However, we cannot say that the print or font size is unreasonably small. The arbitration provision is neither concealed nor distinguished from other provisions in the agreement. It is the second numbered provision of 13 total in the 2010 agreement. It is located at the bottom right of the first page of the four-page agreement and continues on 112the second page. Its heading is in bold-faced capitals, and it is set off by double spacing from the provisions above and below it, as are the other provisions in the agreement. A mere perusal of the bold-faced headings in the agreement apprises the reader of the required “BINDING ARBITRATION FOR COTTON-RELATED CLAIMS MADE BY GROWER.” The arbitration provision is neither distinguished nor concealed in any way. We must conclude that the arbitration clause is not shown to be adhesionary by its physical features or the similar manner in which it and other clauses are distinguished in the Technology Agreement.

Next, we consider whether the arbitration provision lacks mutuality. The Aguillard opinion did not directly address what is meant by mutuality, but the court considered whether the arbitration provision limited the rights of both parties to litigate, which it did. In Sutton Steel, supra, the arbitration clause did not affect both parties in the same way. The defendant, BellSouth, had the option to pursue remedies other than arbitration, including litigation, and the arbitration clause prohibited consolidated or class action claims that would benefit plaintiffs. The focus of these cases is whether the arbitration provision limits the rights of the parties to seek redress for claims they might have.

Considered in light of the Aguillard and Sutton Steel cases, the arbitration clause lacks mutuality. The requirement for binding arbitration applies broadly to “any claim or action” by the grower “arising out of and/or in connection with this Agreement or the sale or performance” of seed containing Monsanto technology. Only claims that the growers may have | isarising under the patent laws are excluded from binding arbitration. The arbitration clause does not in any way limit the rights of Monsanto or the sellers who may have claims against the growers arising out of or in connection with the agreement, sale, or performance of the cotton seed. We are not persuaded by Monsanto’s argument that mutuality is “unmistakable” because the arbitration clause requires it to jointly pay for arbitration and because it would be bound by the arbitrator’s decision. Notably, the arbitrator is free to apportion all fees to one party in making its decision, thereby rendering the alleged mutuality meaningless. The lack of mutuality, alone, does not mandate a finding that the arbitration provision is adhesion-ary and unenforceable.

Finally, we must consider the relative bargaining positions of the parties. There is nothing in this record to indicate that Monsanto’s standard form Technology Agreement would have been subject to negotiation, even if attempted by the plaintiffs. Referring to Aguillard, supra, Monsanto argues that the difference in bargaining positions is a consideration only when a contract involves such a necessary transaction that the party was compelled to enter it. Monsanto asserts that the record does not show that the plaintiffs were compelled to purchase its seed or other seed containing its technology. On the other hand, the plaintiffs assert in their affidavits that they grew only Roundup Ready cotton and other crops, that these crops are necessary to their livelihoods and income, and that “to the best of [their] knowledge, local suppliers only sell corn, cotton, or soybean seed that contains Roundup Ready technology.”

|, 4 Other than the assertions in their affidavits, the plaintiff did not offer any evidence that only seeds with Roundup Ready technology are sold by their local suppliers. Their assertions do not foreclose the possibility that other seeds could be ordered locally or purchased elsewhere. Additionally, the plaintiffs’ petition appears to belie the assertions in their affidavits. The petition includes the following paragraphs:

4.
The Delta Pine 0949 B2RF cotton seed was defective. It did not retain fruiting positions, nor did it set bolls similar to other cotton varieties planted in the same regions.
6.
The crop which resulted from the 0949 B2RF variety was a late maturing and poorly yielding crop that yielded significantly less than other cotton varieties planted by Petitioners using other cotton varieties, oftentimes in adjacent fields planted on the same day, within the same time period and under the same environmental conditions.

While the petition does not indicate, and we cannot say, whether the other varieties referenced in the petition included Monsanto’s patented technology, the plaintiffs’ pleadings suggest that other varieties of cotton seed were available and that they did plant other varieties of cotton seed that performed better than the particular seed at issue. Additionally,' Monsanto introduced evidence showing the availability of other seeds that could have been planted in the plaintiffs’ region.

While plaintiffs may have favored the seeds with Monsanto’s technology, we cannot find that the purchase of the seeds at issue was so necessary that the plaintiffs were compelled to enter the Technology | ¡/¡Agreement. As such, the disparity in the parties’ bargaining positions does not persuade this court to declare the arbitration provision adhesionary and unenforceable.

Although the clause lacks mutuality and there is an apparent disparity in the parties’ bargaining positions, the Aguillard analysis does not mandate a finding that the arbitration clause is adhesionary and unenforceable. The arbitration agreement is written in clear and unambiguous language, and it is not buried in overly small boilerplate language in the agreements. The plaintiffs all signed agreements that included the arbitration clause. Considering the strong public policy under both federal and state law favoring arbitration and the bedrock principle that one who signs a written document is presumed to know its contents and cannot escape its obligations by claiming not to have read or understood the agreement, we are compelled to reverse the trial court’s judgment, grant Monsanto’s exception of prematurity, and stay further proceedings so the claims can be submitted to binding arbitration.

CONCLUSION

For the reasons stated, the trial court’s judgment is reversed. Further proceedings are stayed for submission of the plaintiffs’ claims to binding arbitration. Each party is to bear his own costs.

REVERSED.

      . Monsanto Company is the proper defendant-manufacturer. Monsanto Ag Products, LLC, Pharmacia Corporation, and Delta Pine and Land Company (correctly referred to as Delta and Pine Land Company, LLC) are not properly named defendants because they either no longer exist or have no ownership interest in Monsanto.

      . According to Monsanto, the seed at issue contained two patented transgenic traits, which are designated by "B2” and "RF” in the name. The first helps protect the plants from cotton bollworm (Bollgard II®), and the latter allows for the application of herbicide without harm to the plant (Roundup Ready Flex®).

      . The agreement contains a clause providing that it remains in effect until terminated by the grower or Monsanto, that any new terms will be mailed to the Grower each year and that “[cjontinuing use of Monsanto Technologies after receipt of any new terms constitutes Grower's agreement to be bound by the new terms.” Based on this language, Monsanto asserts that those farmers who planted the seed at issue but did not sign new agreements in 2010 are still bound by the arbitration provision in the agreements signed in prior years.

      . La. C.C. art. 1949 reads, "Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.”

      . Our primary focus is the 2010 Technology Agreement. However, our review applies to all versions admitted into evidence. In reviewing these, we found nothing that would lead to a different conclusion regarding the physical characteristics or distinguishing features of the arbitration clause.


author: WILLIAMS, J.

text:
    Doug BENSON and Dana Benson, Plaintiffs-Appellants v. The STATE of Louisiana, The Board of Trustees for State Colleges and Universities, The University of Louisiana System and The University of Louisiana at Monroe and The Ouachita Parish School Board, Defendants-Appellees.
    No. 48,300-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 9, 2013.

      Brian E. Crawford, Monroe, Jeffrey L. Dement, for Appellant.
    Robert M. Baldwin, Johnny R. Hucka-bay, II, Monroe, for Appellee.
    Before WILLIAMS, DREW and GARRETT, JJ.
   WILLIAMS, J.

|TThe plaintiffs, Douglas and Dana Benson, appeal a judgment denying their motion for partial summary judgment and granting summary judgment in favor of the defendants, State of Louisiana, the Board of Trustees for State Colleges and Universities, the University of Louisiana System and the University of Louisiana-Monroe (collectively referred to as “ULM”). The district court found that the plaintiffs failed to prove that ULM had actual or constructive knowledge of a defective seat. For the following reasons, we affirm in part, reverse in part and remand for further proceedings.

FACTS

On May 19, 2005, Douglas Benson (“Benson”) and his wife, Dana Benson, attended the West Monroe High School graduation ceremony of their daughter at the Fant-Ewing Coliseum on the ULM campus. The stadium has 7,000 fold-down seats and is the site of approximately 50 events per year. The seats have been in use since they were installed in 1970. Near the end of the ceremony, Benson’s seat broke and he fell down to the floor, landing on his buttocks and hitting his head. Benson suffered injuries as a result of the fall.

The plaintiffs, Douglas and Dana Benson, filed a petition for damages against the defendants, ULM and the Ouachita Parish School Board. Following discovery, the plaintiffs filed a motion for partial summary judgment alleging that ULM had constructive notice of the defective seat and failed to repair it. In response, ULM filed a motion for summary judgment on the ground that it did not have actual or constructive notice of |2the defective condition of the seat.

After a hearing on the motions for summary judgment, the district court issued written reasons, finding that the plaintiffs failed to satisfy their burden of proving that ULM had constructive notice of the defective condition of the seat. Thereafter, the court rendered judgment granting the defendants’ motion for summary judgment, denying the plaintiffs’ motion and dismissing their claims. The plaintiffs appeal the judgment.

DISCUSSION

The plaintiffs contend the district court erred in granting ULM’s motion for summary judgment and denying their motion. Plaintiffs argue that they satisfied their burden of proving that ULM had constructive notice of the hazardous condition by presenting evidence showing that at the time of the accident the defective seat was 35 years old, that many other seats had broken and been removed and that ULM had never performed a physical inspection of the Coliseum seats.

We are liable for the damage caused by the things which are in our custody. LSA-C.C. art. 2317. No person shall have a cause of action based on liability under Article 2317 against a public entity for damages caused by the condition of things in its care unless the public entity had actual or constructive notice of the particular defect which caused the damage prior to the occurrence and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so. LSA-R.S. 9:2800. To recover against a public entity for damages due to a defective thing, a plaintiff must prove that: (1) the thing which caused the damage was in the custody of the ^public entity; (2) the thing was defective due to a condition creating an unreasonable risk of harm; (3) the entity had actual or constructive notice of the condition yet failed to take corrective action within a reasonable period of time; and (4) the defect was a cause of plaintiffs harm. Jones v. Hawkins, 98-1259 (La.3/19/99), 731 So.2d 216; Ricks v. City of Shreveport, 42,675 (La.App.2d Cir.10/24/07), 968 So.2d 863. Failure to meet any one statutory element will defeat a negligence claim against a public entity. Breitling v. Shreveport, 44,112 (La.App.2d Cir.5/13/09), 12 So.3d 457.

Constructive notice is defined as the existence of facts that imply actual knowledge. LSA-R.S. 9:2800(D). To prove constructive notice, plaintiffs must produce facts demonstrating that the defect existed for a sufficient period of time that it should have been discovered and repaired if the public entity had exercised reasonable diligence. Breitling, supra.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Argonaut Great Central Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.6/3/09), 13 So.3d 1209, writ denied, 2009-1491 (La.10/2/09), 18 So.3d 122; Whitaker v. City of Bossier City, 35,972 (La.App.2d Cir.4/5/02), 813 So.2d 1269. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

The burden of proof remains with the mover. However, if the mover |4will not bear the burden of proof at trial on the matter before the court, then the mover is not required to negate every essential element of the adverse party’s claim, action or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or defense. If the adverse party fails to produce factual support to show that he will be able to satisfy his evidentiary burden of proof at trial, then there is no genuine issue of material fact. LSA-C.C.P. art. 966(C).

Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Hooker v. Wal-Mart Stores, Inc., 38,350 (La.App.2d Cir.4/7/04), 870 So.2d 1131, writ denied, 2004-1420 (La.9/24/04), 882 So.2d 1142. One reason is that these subjective facts call for credibility evaluations and the weighing of testimony. Hooker, supra; Oaks v. Dupuy, 32,070 (La.App.2d Cir.8/18/99), 740 So.2d 263, writ not considered, 99-2729 (La.11/24/99), 750 So.2d 993.

In the instant case, Steven Hollis presented deposition testimony that he began working in the maintenance department of ULM in 1994 and that in 2005 he was primarily working in the Coliseum. Hollis stated that his job duties involved replacing lightbulbs, making minor plumbing repairs, and fixing stadium chairs if possible. Hollis testified that he inspected the |sstadium seating before each event by walking down each row and visually cheeking the seats. According to Hollis, if he saw a seat that did not “look right,” he tried to repair the chair and if it could not be fixed then he removed the seat from use. He estimated there were about 50 chairs out of use, including some rows of chairs. Hollis stated that his visual inspection takes approximately one hour to complete, that he was not aware of any formal inspection policy of ULM and that he does not keep any records documenting when seats have been repaired. Hollis testified that he used parts from out-of-service seats to repair other seats.

Hollis also, testified that a bolt had sheared completely, causing the seat to collapse. Hollis stated that such a shear had occurred only three times in his experience and that most of the time the bolts had bent, causing the seat to visibly hang down. According to Hollis, when he saw a seat in that position during his inspection he changed the bolt. Hollis testified that this was the only incident he could recall in which a seat collapsed and injured a person. He stated that the seats were installed in 1970 and that replacement parts were no longer available. Hollis testified that ULM did not know the identity of the manufacturer.

Douglas Benson testified during his deposition that he had sat in the seat during the entire graduation ceremony, except for getting up to go to the restroom. Benson stated that he did not notice anything wrong with the seat before he sat down. Benson testified that while he was sitting, the seat bottom suddenly collapsed, he fell to the floor, landed on his buttocks and hit his head. During her deposition, Dana Benson testified that near the end | Bof the graduation ceremony, Douglas was sitting in the seat when it broke. Mrs. Benson stated that the seat fell down, he slid to the floor, landed on his buttocks and hit the side of his head on the armrest. Mrs. Benson testified that the seat did not fall completely off, but was hanging down toward the floor.

In support of their motion for partial summary judgment, plaintiffs submitted the affidavit of Mitchell Wood, a licensed architect, contractor and home inspector. Wood testified that he has training and experience in public facility management and safety. Wood stated that ULM had actual knowledge that the seats were 35 years old, that many had broken over the years and that the collapse of a seat would injure the person seated. He testified that he did not believe a person could conduct even a cursory visual inspection of the 7,000 seats in the time described by Hollis. Wood opined that ULM should have thoroughly inspected every section of seats once each year to check for structural soundness. Wood opined that the walkth-rough done by Hollis was unreasonable given the age and worn condition of the seats.

In opposition to plaintiffs’ motion, ULM submitted the transcript of Mitchell Wood’s deposition, in which he testified that he could not determine what caused the chair to collapse. Wood stated that metal fatigue, a sheared bolt or loose bolts could cause that type of seat to collapse. Wood testified that he could not dispute the statement of Hollis that the seat failed because a supporting bolt had sheared. Wood did not know of any other injuries caused by a collapsing seat at the Coliseum. _[¿Wood stated that he could not look at a bolt and determine when it was going to shear, or break, because a shear is a catastrophic failure that does not happen slowly, but occurs rapidly. He testified that metal failure “is usually very rapid and sudden and there’s not a lot of signals that’ll tell you that it is going to rapidly break and fail[.]” Although Wood testified that he was unaware of the number of times the seats were used in one year, he opined that 25 years was the typical useful life of such seats. Wood further opined that because of the advanced age of the stadium seating and the defective condition of many other seats, ULM should have performed a thorough physical inspection of the seating annually.

Citing Saulny v. Tricou House, L.L.C., 02-1424 (La.App. 4th Cir.1/29/03), 839 So.2d 392, the plaintiffs argue that ULM had constructive notice of the defective seat because a number of other stadium chairs had broken. In Saulny, supra, the court found that under the circumstances of that case, the restaurant had constructive notice of the defective condition of the seat because the owner was aware that other seats had similarly broken.

In the present case, the plaintiffs presented evidence that ULM was aware that over the years other seats of the same age as the seat at issue had broken. The plaintiffs also produced their expert’s opinion that a periodic physical inspection was required because the old seats in the Coliseum were likely to break, as shown by the numerous seats that had been removed from use by ULM. Wood opined that given the age of the seats and the number of broken seats, the inspection by ULM was inadequate and that the seats should have been physically inspected annually. Wood further opined that |8the failure of the metal bolt was foreseeable and that the old bolts should have been replaced.

As stated above, Wood disputed Hollis’ testimony and opined that a person could not complete even a cursory inspection of the 7,000 seats within an hour. Thus, plaintiffs presented testimony to create a genuine issue of material fact as to whether the defective condition of the seat had existed for a sufficient period of time to have been discovered and repaired in the exercise of reasonable care. Credibility determinations by the trier of fact are necessary to resolve the conflicting testimony.

Based upon this record, we find that a genuine issue of material fact exists regarding the notice of the defective condition which caused the plaintiffs’ damages. Consequently, the district court erred in granting the defendants’ motion for summary judgment and correctly denied plaintiffs’ motion for partial summary judgment. Accordingly, we reverse the court’s summary judgment in favor of ULM and remand this matter for further proceedings.

CONCLUSION

For the foregoing reasons, that part of the district court’s judgment granting ULM’s motion for summary judgment is reversed and the denial of plaintiffs’ motion for partial summary judgment is affirmed. This matter is remanded for further proceedings. Costs of this appeal in the amount of $122.50 are assessed to the appellees, State of Louisiana, the Board of | ¡¡Trustees for State Colleges and Universities, the University of Louisiana System and the University of Louisiana-Monroe.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.

      . Ouachita Parish School Board was subsequently dismissed from the lawsuit.

      . According to Hollis, at the time of the accident he was "running sound" on the floor of the stadium.


author: THIBODEAUX, Chief Judge.

text:
    NATCHITOCHES PARISH LAW ENFORCEMENT DISTRICT v. DECIMAL, INC., et al.
    No. 13-238.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.
    Rehearing Denied Nov. 27, 2013.

      Ronald E. Corkern, Jr., Corkern, Crews & Guillet, L.L.C., Natchitoches, LA, for Plaintiff/Appellee, Natchitoches Parish Law Enforcement District.
    Aubrey Richard Snell, Snell & Robinson Law Office, Bossier City, LA, for Defendant/Appellant, City Tele-Coin Company, Inc.
    W. James Singleton, Ree J. Casey-Jones, Singleton Law Firm, Shreveport, LA, for Defendant/Appellant-City Tele-Coin Co., Inc.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

| j Plaintiff, Natchitoches Parish Law Enforcement District (NPLED), filed a Rule to Show Cause to inspect certain electronic records of City Tele-Coin Company, Inc. (Tele-Coin) after NPLED ceased business with Tele-Coin. Tele-Coin was ordered to produce the records in a November 2010 order, but failed to do so. Two years later, Tele-Coin alerted the trial court that the records NPLED sought had been erased or overridden. NPLED filed a Rule for Contempt seeking sanctions against Tele-Coin. The trial court held that Tele-Coin failed to comply with an order of discovery under La.Code Civ.P. art. 1471, and ordered Tele-Coin to pay NPLED’s attorney fees and costs. Tele-Coin appeals that judgment. We affirm.

I.

ISSUE

We will determine whether the trial court erred in interpreting the November 2010 judgment as an order of discovery rather than a final judgment, and imposing sanctions on Tele-Coin for failure to comply-

II.

FACTS AND PROCEDURAL HISTORY

NPLED hired Decimal, Inc. (Decimal) in 2002 to provide the Natchitoches Detention Center with telephone service for inmates. Decimal immediately subcontracted the job to Tele-Coin. After several years, the contract between NPLED and Decimal expired. Sometime before the contract ended, NPLED requested records from Tele-Coin pertaining to inmate phone calls to |2ensure NPLED received the commission it was entitled to under the contract. Tele-Coin spent several months avoiding the request. In 2009, NPLED hired a new company to fulfill its communications needs, and continued to request the records it needed. Still, Tele-Coin refused.

NPLED finally filed a Rule to Show Cause why Tele-Coin should not be ordered to produce the records. The trial court granted the Rule, and ordered the parties to jointly draft an order to meet NPLED’s discovery needs. In a document dated November 2010, the trial court ordered Tele-Coin to produce call detail records for 2006 through termination of the contract, along with several other records. Tele-Coin produced some of the records, but failed to produce the call detail records, which were a listing of every call made, and the time spent on the call. Tele-Coin asserted it had produced everything in its possession, neglecting to inform NPLED of the reason why it did not have the records. NPLED finally filed a Motion for Contempt against Tele-Coin.

At a hearing on the motion, Tele-Coin asserted, for the first time, that all call detail records are purged, dumped, or recorded over every thirty days. Essentially, the records NPLED spent years trying to obtain had been overridden before the November 2010 order was signed. The trial court held that Tele-Coin was subject to sanctions for failure to comply with a discovery order, and ordered Tele-Coin to pay NPLED’s attorney fees and costs in the amount of $84,285.62. Tele-Coin appeals this judgment.

_kHI.

LAW AND DISCUSSION

Standard of Review

The trial court has ample discretion in imposing monetary sanctions for failure to comply with a discovery order. Hutchinson v. Westport Ins. Co., 04-1592 (La.11/8/04), 886 So.2d 438. We review sanctions for abuse of discretion and we will not disturb such a decision absent clear or manifest error. Id.

Discussion

November 2010 Order

The trial court interpreted the November 2010 document as an order of discovery, even though it was titled a judgment. The court, therefore, applied the discovery articles and treated the motion as one brought pursuant to La.Code Civ.P. art. 1471. Tele-Coin argues that the November 2010 document was titled and styled as a judgment, and that the trial court’s reliance on the discovery articles was misplaced. The sanctions the court imposed on Tele-Coin are the consequence of failing to obey an order of discovery, and thus Tele-Coin contends that the sanctions were improper. We agree with the trial court that the November 2010 order was an order of discovery, not a final judgment.

Although the November 2010 order is entitled “Judgment,” it is actually an order to produce documents. Rather than relying on hyper-technical verbiage, we are moved to look at the purpose and substance of the document. Boellert v. Lumpkin, 620 So.2d 431, 432 (La.App. 3 Cir.1993) (holding that the |4nature of a pleading “must be determined by its substance, not its caption”). The trial court held a hearing in April 2010 on NPLED’s Rule to Show Cause. The hearing was intended to remedy Tele-Coin’s continued failure to produce the documents. The parties repeatedly referred to the hearing’s outcome as an “order.” They stated that they were “trying to craft the language for an appropriate order” for the judge to sign. The heading, therefore, is not talismanic terminology that would determine the procedural mechanism for resolving this dispute. The trial court correctly determined that the document was an order for production.

Sanctions

Louisiana Code of Civil Procedure Article 1471 states that if a party fails to obey an order to provide discovery, the court in which the action is pending, may “make such orders in regard to the failure as are just.” Further, “the court shall require the party failing to obey the order ... to pay the reasonable expenses, including attorney fees caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” La.Code Civ.P. art. 1471(C). In this case, NPLED began pursuing the call detail records in 2008, and it was led to believe that they existed until the contempt hearing in 2012 when, for the first time, Tele-Coin informed the court and NPLED that the records had, in fact, been deleted or overridden thirty days after they were created. Before the 2012 hearing, Tele-Coin continually defended its refusal to produce the records. It first refused for technical reasons, and then it argued that it had no legal duty to produce the documents, and finally it asserted that it had turned over everything it had. While technically accurate, Tele-Coin could have saved NPLED thousands of dollars by being honest and direct |Babout why the records did not exist. We find the trial court was within its discretion to order Tele-Coin to pay NPLED’s attorney fees during this period. No reason or circumstance exists that would make an award of these expenses unjust.

Section B of La.Code Civ.P. art. 1471 states that “[a]bsent exceptional circumstances, a court may not impose sanctions under this Article on a person or party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” We agree with the trial court’s finding that, although sanctions are being imposed for failing to provide electronic information lost as a result of routine operation, these are exceptional circumstances. Specifically, Tele-Coin’s failure to provide a meaningful explanation of why it could not produce the documents led NPLED to continue pursuing them, since the call detail records were crucial to proving NPLED’s claim that they were not paid the appropriate commission. The trial court found that Tele-Coin’s failure to provide NPLED with the records, and its failure to explain its reluctance, caused NPLED to accrue unnecessary expenses and attorney fees. We agree.

IV.

CONCLUSION

For the reasons above, we affirm the trial court’s judgment of sanctions against City Tele-Coin Company, Inc. for attorney fees and court costs to Natchitoches Parish Law Enforcement District.

■All costs of appeal are assessed to City Tele-Coin Company, Inc.

AFFIRMED.

      . The contract stipulated that NPLED received a commission based on the amount of time inmates spent on the phone. Thus, the records were necessary to determine any potential claim NPLED had against Decimal that the commission was inadequate.

      . The trial court sanctioned Tele-Coin for failing to produce the documents, but refused to find Tele-Coin willfully or purposefully evaded NPLED’s requests, as would be required to find Tele-Coin in contempt.