author: COX, J.

text:
    J & L OIL COMPANY, Plaintiff-Appellant v. KM OIL COMPANY, LLC, Haymary, Inc., Big M Oil Company, and Feist Properties, LLC, Defendants-Appellees
    No. 51,898-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018
    JUSTIN H. COURTNEY, Counsel for Appellant
    KEVIN W. HAMMOND, Counsel for Appellees, KM Oil Company, LLC, Haymary, Inc., and Big M Oil Company
    WEINER, WEISS & MADISON, By: John McGinty Frazier, Counsel for Appellee, Feist Properties, LLC
    Before MOORE, COX, and STEPHENS, JJ.
   COX, J.

J & L Oil Company filed suit against defendants, KM Oil Company, LLC, Haymary, Inc., Big M Oil Company, and Feist Properties, LLC (collectively referred to as "Defendants") for impinging upon J & L's oil, gas, and mineral lease (hereinafter referred to as "OGML"). Both J & L and Defendants filed motions for summary judgment. In a written ruling, the district court denied J & L's motion for summary judgment and granted Defendants' motion for summary judgment. J & L appeals the granting of Defendants' motion for summary judgment. For the following reasons, we affirm.

FACTS

This suit arises out of the production of oil from a tract of land (hereinafter referred to as the "Feist Land") located in Section 25, Township 21 North, Range 15 West, Caddo Parish, LA, comprising 55 acres, more or less, more particularly described as follows:

The South Half of the Northwest Quarter (S/2 of NW/4), less the West 825 Feet thereof, Section Twenty-Five (25), Township Twenty-One (21) North, Range Fifteen (15) West, Caddo Parish, Louisiana.

The following instruments establish the parties' interests in the Feist Land:

A. OGML (hereinafter referred to as the "1951 Lease") Eunice W. Feist, et al (Lessors) Executed 11/19/1951 Imperial Agency Corp. (Lessees) Recorded 1/28/1952 "[T]his lease ... shall give the Lessors no rights to strata lying below Twenty-Five Hundred (2500) Feet mean Gulf level, all rights below that level are being retained by Lessor[.]" B. Assignment of OGML Imperial Production Co. (Assignor) Effective 1/1/19661 Miriam Ann Trahan (Assignee) Recorded 1/3/1966 Document shows an assignment of interest in the 1951 Lease. C. Assignment of OGML Miriam Ann Trahan, et al2 (Assignor) Executed 6/7/1999 Jimmy Courtney, et al3 (Assignees) Recorded 7/20/1999 Document shows an assignment of interest in the 1951 Lease. D. OGML4 Feist Properties, LLC (Lessor) Executed 5/27/2008 KM Oil Company, LLC (Lessee) Recorded 5/28/2008 "[T]his lease covers the right to explore and produce ... minerals only from the interval located between a depth of 2,500 feet below the surface of the earth and a depth of 3,500 feet below the surface of the earth, called the "Leased Interval[.]" E. Assignment of OGML KM Oil Company, LLC (Assignor) Executed 5/28/2008 Haymary, Inc. (Assignee) Recorded 5/28/2008 Document shows an assignment of 2/3 interest in the 2008 OGML. F. Extension OGML Feist Properties, LLC (Lessor) Executed 5/25/2009 KM Oil Company, LLC (Lessee) Recorded 6/5/2009 Document extends the term of the 2008 lease and amends the allowable depths. "[I]t is agreed that the Leased Interval shall be amended from 2,500-3,500 feet to 2,000-3,500 below the surface of the earth." * * *

[Editor's Note: The preceding image contains the references for footnotes , , , ].

This suit is dependent upon the wording of Article 6 in the 1951 Lease, which provides, in pertinent part:

The consideration of this lease is the unconditional obligation of Lessee to commence the actual drilling of a well on some portion of the leased premises on or before January 1, 1952... to a total depth of at least 1700 feet[.] Failure to comply strictly with this obligation shall ipso facto terminate this lease[.]
Thereafter this lease may be kept in full force and effect only by continuous drilling, by which is meant the beginning of a second well within Thirty (30) days after completion or abandonment of the first well, and beginning of a third like well within Thirty (30) days after the completion or abandonment of the second well, and beginning of a fourth like well within Thirty (30) days after completion or abandonment of the third well, and the beginning of a fifth like well within Thirty (30) days after the completion or abandonment of the fourth well-so that lessee shall drill and complete diligently five (5) wells within the time limits fixed herein.
[I]t being agreed and understood that the failure to drill any successive well (after the first well is completed or abandoned) within the prescribed time for the commencement of that successive well under the continuous drilling schedule set forth in the preceding paragraph shall ipso facto terminate, cancel and forfeit this lease, and Lessee shall have no right to resume drilling, and all its rights in this lease shall cease; provided, however, that if five (5) wells are timely drilled within the allotted time for each well, and all are completed as commercial producers, then all of the land leased shall be bound by this lease as long as all of the five (5) wells remain producers in paying quantities. But if less than five (5) wells are timely drilled, or five (5) wells are timely drilled and one or more cease to produce in paying quantities, then in either event any such well completed and remaining a producer in paying quantities is to hold only five (5) acres in a square with the well in the center thereof so long as said well produces in paying quantities. Any well which fails to produce in paying quantities shall not have the effect of holding any portion of this lease in force as to any of the acreage described.

J & L, KM, and Haymary each assert the ability to produce oil between the depths of 2,000-2,500 feet on the Feist Land.

Five wells were drilled by Imperial on the Feist Land within the time limits stipulated in the 1951 lease. According to Exhibit F submitted by Defendants, J & L drilled a total of 11 wells from 1/16/1952 through 7/15/1967. The same exhibit states that on the Feist Land in 2015, J & L

allegedly produced three barrels of oil for the months of February and March, one barrel for the month of April, and three barrels for the month of May. However, as per Defendants' Exhibit F, there has not been a disposition of oil since January of 2015, when 77 barrels of oil were sold. The exhibit does not state which party or company sold the oil.

Defendants' Exhibit F further stated the following information was found in Lease Facility Inspection Reports at the Louisiana Office of Conservation:

1. The Feist No. 006 well had a report dated June 26, 2015. The well sign was mis-located and the Well No. 5 sign was on the Well No. 6. There was also a reported oil spill by the landowner, and a minor spill was observed from a flow line leak of approximately 2.5 barrels of oil. The operator has restored the surface.
2. There is another Lease Facility Inspection Report covering the Feist No. 004 well dated 8/26/2014. This well seems to be P&A as there was no well at the well site location.
3. Lease Facility Inspection Report No. 45177 dated July 30, 2014, concerns the Feist 003 Well. This well shows to be producing as a status 10, but it is not producing.

KM & Haymary drilled two wells to depths near 3,000 feet under the 2008 Lease. There was no mineral production from either well. KM then requested Feist Properties amend the lease to include depths of 2,000-2,500 feet. Two wells, Feist A No. 2 and Feist A No. 3, were ultimately perforated between 2,200 and 2,500 feet. Both of these wells produced in paying quantities.

Defendants' Exhibit H is a plat showing the J & L wells and KM wells. A five-acre square is drawn around the J & L wells. The square around J & L well Feist No. 3 encompasses the KM well Feist A No. 3. The square around J & L well Feist No. 4, which is noted as plugged and abandoned, encompasses the KM well Feist A No. 1, which is also noted plugged and abandoned, and the KM well Feist A No. 2.

Big M Oil Company served as the operators for the KM wells and produced oil from the Feist Land during 2010-2011, resulting in working interest payments totaling $261,397.03, paid to KM and Haymary.

J & L filed a petition to nullify the lease and for damages on July 6, 2011. J & L filed a motion for summary judgment on November 4, 2016, requesting the 2008 Lease and 2009 Extension be nullified to the extent it covers 2,000-2,500 feet below the surface of the earth.

In their motion for summary judgment, J & L submitted an affidavit from Jerry Don Courtney, who stated he has assisted in the pumping of the oil wells on the Feist Land, gauging of the stock tanks, and communicating with buyers since the 1970s. His affidavit further stated there has been continuous oil production from the wells located on the Feist Land, which have been operated by J & L and its predecessors to the 1951 Lease.

Defendants filed their motion for summary judgment on November 3, 2016, accompanied by an affidavit from James R. McCormick. The affidavit stated Imperial drilled five wells, but not all came on as, or remained, commercial producers. It further stated the KM Feist A No. 2 and KM Feist A No. 3 wells are within the five-acre squares surrounding the J & L No. 3 and No. 4 wells. The affidavit states the J & L No. 3 well does not have electricity connected to the well, has neither a treating hose nor a treating pot, the riser wire is not connected, and there is no fluid in the flow line. It states the J & L No. 4 well is classified as plugged and abandoned and contains no surface equipment.

J & L filed an opposition memorandum to Defendants' motion for summary judgment on January 17, 2017. J & L stated that the "so-called 'Pugh' clause would have been triggered prior to the drilling of the Feist # 6 well in 1966. However, eight more wells were drilled in 1966 and 1967, without complaint by the Lessors." J & L stated that Malcolm Feist and Carroll Feist signed an OGML in 1977 and acknowledged that the 1951 Lease remained "a producing mineral lease." J & L argued this 1977 OGML signed by Malcolm Feist and Carroll Feist supports the plaintiff's version of the reading of the 1951 Lease.

J & L suggested the parties' intent was that any five producing wells would maintain the lease. "[T]he Plaintiffs aver that as long as five (5) wells are producing in paying quantities, then the entire 55 acre tract, down to a depth of 2,500 feet, remains held by production." J & L further stated that at all times pertinent, there were at least five wells producing on the 1951 Lease.

J & L then objected to the McCormick affidavit and the well history submitted by Defendants. It stated McCormick had no actual knowledge of the facts and relied on his research at the Louisiana Office of Conservation. It argued there was nothing to suggest the research by McCormick was reliable because he had not been deemed an expert. J & L found the list of wells submitted by Defendants to be inaccurate because it listed wells drilled by another operator prior to the 1951 Lease and did not correctly identify J & L well No. 3 or well No. 4.

In an affidavit attached to J & L's opposition memorandum, Courtney stated the electric line to the Feist No. 3 well was torn down by equipment operated by Defendants. This affidavit, although similar to the first Courtney affidavit, had additional language, which stated, "the wells known as Feist # 1, # 2, # 3, # 4, # 5, # 6, # 7, # 8, # 9, # 10, # 11, # 12, and # 13 were continuing to produce oil in the 1970's when he became familiar with operations of the Feist lease."

Defendants filed a memorandum in opposition to J & L's motion for summary judgment on January 20, 2017. Defendants pointed out that J & L did not comply with Louisiana District Court Rule 9.10 because it did not include a list of the essential legal elements or a list of material facts it contends are undisputed. Defendants stated this was a fatal procedural error that precludes the court's granting of J & L's motion. Defendants argued that if J & L's interpretation of the lease was correct, the last sentence in Article 6 of the 1951 Lease would be meaningless. Defendants argued this interpretation was in violation of La. C. C. arts. 2049 and 2050.

On January 25, 2017, Defendants filed a reply to J & L's opposition to Defendants' motion for summary judgment. They disagreed with J & L's interpretation of Article 6 of the 1951 Lease as "any" five wells remaining in production will hold the entire lease. Defendants noted the resolutory condition is not expressed as "if enough wells cease to produce so that the remaining productive wells is a number less than five." They argued the 1951 Lease is not ambiguous. Defendants reiterated their point that J & L did not comply with Louisiana District Court Rule 9.10. They also stated McCormick's affidavit was that of a fact witness, so no expert designation was necessary.

On March 3, 2017, Defendants filed a supplemental memorandum in support of their motion for summary judgment, referencing with greater specificity the documents which prove each fact. New evidence was not referenced.

On March 6, 2017, J & L filed a supplemental motion in support of its motion for summary judgment, in accordance with the requirements of Louisiana District Court Rules. It referenced the documents that proved each fact with greater specificity. J & L asserted Defendants had actual knowledge of the ongoing production on the Feist Land because Haymary received and disposed of salt water gathered by J & L from its wells on the Feist Land. J & L argued this prior knowledge is an indication of bad faith on the part of Defendants.

On March 9, 2017, the district court issued its written ruling on the motions for summary judgment. The district court denied J & L's motion and granted Defendants' motion. The court stated, "The dispute at the heart of these cross-motions for summary judgment is whether the plaintiff satisfied the drilling and production requirements of the Pugh clause in the plaintiff's lease."

The district court found the only evidence presented by J & L that the Pugh clause was satisfied, was the affidavit of Jerry Don Courtney. The district court stated:

Courtney's affidavit is insufficient to constitute prima facie proof of the plaintiff's satisfaction of the Pugh clause. It is silent as to the number of wells drilled by the plaintiff, the times at which any such wells were drilled, and whether any such wells remained producers in paying quantities constantly up to the time the defendant's lease was executed and/or the defendant's wells were drilled.
...
Accordingly, the defendants' MSJ, which asserts that the plaintiffs failed to maintain the lease through satisfaction of the Pugh clause, must be granted.

J & L has appealed the district court's ruling on the motions for summary judgment.

DISCUSSION

I. Pugh clause in the Imperial Lease

In its first assignment of error, J & L argues the district court erred in finding that the Pugh clause in the Imperial Lease was not satisfied. J & L states, as it did previously, that the Pugh clause in the 1951 lease was satisfied. It objects to the well history compiled by the defendants because it believes it to be hearsay and unreliable due to the incorrect listing of wells. J & L relies on the Courtney affidavit to satisfy that there has been continuous, on-going oil production from the wells located on the Feist Land. It argues the affidavit evidences that each of the five initial wells was producing into the 1970s. It also points out the acknowledgment by Carroll Feist and Malcolm Feist in the 1977 OGML that the 1951 Lease remained a "producing mineral lease."

J & L states that once it has shown that the requisite five wells were drilled, the court must decide how the 1951 Pugh clause will function and when it will begin to function. J & L argues that because there are multiple interpretations of how the Pugh clause will operate, there is a need for a full interpretation of the terms of the 1951 Lease.

A de novo standard of review is required when an appellate court considers rulings on motions for summary judgment, and the appellate court uses the same criteria that governed the district court's determination of whether summary judgment was appropriate. Creek Mgmt., L.L.C. v. Unopened Succession & Unknown Heirs or Legatees of Williams , 51,392 (La. App. 2 Cir. 5/17/17), 223 So.3d 1194, writ denied , 2017-1252 (La. 10/27/17), 228 So.3d 1222. A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

The burden of proof on a summary judgment motion remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(D)(1).

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. When a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit. Id. , comment (b); Maloney v. Oak Builders , 256 La. 85, 235 So.2d 386 (1970). Each provision of a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

A conditional obligation is one dependent on an uncertain event. If the obligation may be immediately enforced but will come to an end when the uncertain event occurs, the condition is resolutory. La. C.C. art. 1767. Conditions may be either expressed in a stipulation or implied by the law, the nature of the contract, or the intent of the parties. La. C.C. art. 1768.

The heart of the dispute is whether J & L satisfied the 1951 Pugh clause. To prevail on a motion for summary judgment, J & L would have to introduce prima facie evidence that it satisfied the requirements of the 1951 Pugh clause, making the entire 55 acres held by production.

We find the language of Article 6 in the 1951 Lease to be clear and unambiguous. As stated in La. C.C. art. 2046, there is no need to pursue the intent of the parties.

It is clear the first well had to be drilled by January 1, 1952. Each subsequent well had to be drilled within 30 days of the completion or abandonment of the previous well. The lessee must drill five wells within the time limits given. If the five wells were drilled within the time limits, and if all were completed as commercial producers, and as long as all five wells remained producers in paying quantities, then all the land would be held by the lease. However, if any of the five wells were not drilled within the time limits or any did not continue to produce in paying quantities, then the only land held by the lease would be a 5-acre square around each producing well. Any well not producing in paying quantities would not hold any portion of the lease.

Article 6 operates as a resolutory condition. When any of the five wells failed to produce in paying quantities, the resolutory condition was triggered, reducing the lease to 5-acre squares around the producing wells.

J & L's evidence consisted of two affidavits from Mr. Courtney, who had been involved in the operation of the wells on the Feist Land since the 1970s. Mr. Courtney stated 13 wells were continuing to produce in the 1970s. J & L did not give the dates the wells were drilled, nor did it produce evidence that the five required wells had constantly produced in paying quantities since being drilled in 1951 and/or 1952. The 1977 OGML from Carroll Feist and Malcolm Feist, noting the 1951 Lease was in effect, is also insufficient proof that all the required wells had constantly produced in paying quantities since being drilled.

We find this assignment of error to be without merit.

II. Genuine Issue of Material Fact

In its second assignment of error, J & L argues the district court erred in finding that no genuine issue of material fact existed. J & L's position is that there is a genuine issue of material fact supported by the record. It lists the following examples as evidence that the 1951 Lease was held by production:

1. The November 4, 2016 and January 16, 2017 Affidavits of Jerry Don Courtney;
2. The July 27, 1977 OGML executed by Carroll W. Feist, et al. which acknowledges that the 1951 Lease remained "a producing mineral lease" and instructs the lessee not to interfere with the works of the 1951 Lease.
3. The defendants acknowledged the requisite five wells were drilled.
4. James McCormick acknowledged current production from the 1951 Lease on the Feist Land because his company disposed of the salt water resulting from the J & L wells.

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. La. C.C.P. art. 966(A)(3). A fact is "material" when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Barfield v. Diamond Constr. Inc. , 51,291 (La. App. 2 Cir. 4/5/17), 217 So.3d 1211, writ denied , 2017-0751 (La. 9/15/17), 228 So.3d 1205. An issue is genuine if reasonable persons could disagree based on the evidence presented. Justiss Oil Co., Inc. v. Monroe Air Ctr., L.L.C. , 45,356 (La. App. 2 Cir. 8/11/10), 46 So.3d 725.

As stated previously, J & L bears the burden of proving its cause of action. In this case, the proof of satisfaction of the Pugh clause is necessary for the cause of action. J & L did not prove the existence of a material fact-that the required wells had been constantly producing since 1951. This fact is essential to determining the outcome of the dispute because the KM wells are impinging on the 1951 Lease only if the wells have constantly produced since 1951.

The two Courtney affidavits and the 1977 OGML do not show a genuine issue. These documents do not show constant well production since 1951.

The defendants' burden was to point out to the court the absence of factual support for J & L's claim that production from the 1951 Lease held the entire Feist Land. The defendants pointed to a lack of factual support for the requirement of continuous production of the five wells since 1951. Defendants met that burden with information from the Louisiana Department of Conservation well logs and the McCormick affidavit. Defendants further showed J & L's Feist No. 3 and No. 4 wells are no longer producing in order to hold a 5-acre square around each well.

Accordingly, we find this assignment of error lacks merit.

CONCLUSION

By not showing continuous production from the 1951 Lease, J & L did not prove a genuine issue of material fact existed. Therefore, Defendants were entitled to judgment as a matter of law. For these reasons, we affirm the district court's grant of Defendants' motion for summary judgment. Costs of appeal are assessed to Appellant, J & L Oil Company.

AFFIRMED.

      This assignment was executed on 12/29/1965, but effective as of 7:00 am on 1/1/1966.

      Miriam Ann Trahan conveyed a portion of her interest to R.A. Baur in 1966. The other assignors on the 1999 assignment have the name Baur. For simplicity, the additional documents have not been listed above, although they are filed in the record.

      Jimmy Courtney and Loyce Courtney, DBA J & L Oil Co. After Jimmy Courtney died, Loyce and the other heirs assigned the Feist lease to J & L, effective 10/31/2008. For simplicity, the additional documents have not been listed above, although they are filed in the record.

      KM did not perform a title search in the conveyance records of Caddo Parish before obtaining the 2008 Lease or the 2009 Extension.

      Although this OGML provision was written before the Pugh clause was created by attorney Lawrence G. Pugh, Sr., both parties have referenced Article 6 by calling it a Pugh clause. References to the Pugh clause are understood to be referencing this provision of the 1951 Lease.

      The last sentence of Article 6 reads, "Any well which fails to produce in paying quantities shall not have the effect of holding any portion of this lease in force as to any of the acreage described."

      J & L outlines the following possibilities as illustration:
      1. When any one of the initial five wells is a dry hole or stops producing in paying quantities; or
      2. When only four or less wells are producing on the whole lease;
      3. If the clause begins to function when any single well ceases to produce, then do the remaining wells producing at the same time continue to be a portion of the leased premises (in a snap-shot of the condition of the lease production at that time); or do the five acre areas independently fail (one-by-one) when a producing well ceases in that particular five acre area.


source: Caselaw Access Project

author: GASKINS (Ad Hoc ), J.

license: Public Domain

text:
    Phillip Deron WASHINGTON, Plaintiff-Appellant v. MAGNOLIA MANOR NURSING HOME AND REHABILITATION, L.L.C., et al., Defendant-Appellee
    No. 51,899-CA
    Court of Appeal of Louisiana, Second Circuit.
    March 28, 2018
    THE SINGLETON LAW FIRM By: W. James Singleton, Counsel for Appellant Phillip Deron Washington
    CASTEN & PEARCE, APLC By: Claude W. Bookter, Jr., Counsel for Appellees State of Louisiana and Christopher Atkins, M.D.
    WATSON, BLANCHE, WILSON & POSNER By: Randall L. Champagne, William A. Fell, Baton Rouge, Counsel for Appellees Willis Knighton Medical Center and Jacquelyn M. Bowers, M.D.
    LUNN, IRION, SALLEY, CARLISLE & GARDNER, APLC By: Ronald E. Raney, Counsel for Appellee Magnolia Manor Nursing and Rehabilitation
    Before BROWN, WILLIAMS, MOORE, COX, and GASKINS (Ad Hoc ), JJ.
   GASKINS (Ad Hoc ), J.

In this medical malpractice lawsuit, Philip Deron Washington appeals a judgment granting defendants' exceptions of no right of action and dismissing his lawsuit because he failed to timely assert a filiation claim. Concluding that Washington timely asserted a filiation claim, we vacate the judgment and remand.

FACTS

Willie P. Pennywell ("Pennywell") was a resident at Magnolia Manor Nursing Home located in Shreveport. On February 27, 2014, Pennywell was taken to the Emergency Room at Willis Knighton Medical Center ("WKMC") after he was found bleeding from the mouth. Dr. Jacquelyn Bowers, the emergency room physician, consulted with Dr. Christopher Atkins, who extracted a deteriorated molar from Pennywell's mouth. Pennywell was discharged to Magnolia Manor later that day. Unfortunately, Pennywell died that night from asphyxia due to obstruction of air passages caused by clotted blood.

On February 13, 2015, Phillip Washington Pennywell ("Washington") filed on behalf of Pennywell a request for a Medical Review Panel against WKMC, Magnolia Manor, and Dr. Bowers. Nowhere in the complaint did Washington state his relationship to Pennywell. On December 9, 2015, Washington filed an amended complaint in which he alleged for the first time that he was the child and sole heir of Pennywell. Dr. Atkins and University Health-Shreveport were named as additional defendants.

On December 19, 2016, following the dissolution of the Medical Review Panel, Washington, now using the name "Phillip Deron Washington," filed a medical malpractice lawsuit seeking survival and wrongful death damages against Dr. Atkins, Dr. Bowers, Magnolia Manor, Willis Knighton Medical Center, and the State of Louisiana.

WKMC and Dr. Bowers filed the exception of no right of action. They argued that Washington was required to prove filiation to Pennywell by clear and convincing evidence in a civil proceeding instituted within one year of Pennywell's death. Attached to their memorandum in support of the exception was Washington's birth certificate, which listed no father. These defendants noted that the words "filiation," "illegitimate," and "acknowledgement" were not mentioned in the petition. They added that the petition did not state that Washington is Pennywell's illegitimate child, that he was ever formally or informally acknowledged by Pennywell, or that he is entitled to filiation.

Dr. Atkins and the State of Louisiana also filed the exception of no right of action. They asserted that there were no allegations in the petition or documents attached to the petition that established Washington's right to sue or qualified him as a beneficiary under La. C.C. arts. 2315.1 or 2315.2. Magnolia Manor also filed the exception of no right of action, adopting the arguments of its codefendants.

Washington argued in opposition to the exceptions of no right of action that he timely raised the issue of paternity because his December 14, 2015, amended medical complaint, which stated that he was the child and sole heir of Pennywell, related back to the original complaint. Washington asserted that this meant that he had instituted a civil proceeding alleging that he is the child and sole heir of Pennywell within one year of Pennywell's death. Washington noted that one method of establishing paternity is for the child to bring an action to prove filiation under La. C.C. art. 197. He then referred to the comments to that article, which provide that all relevant evidence is admissible to prove paternity and that an example of relevant evidence is an informal acknowledgement. Attached to Washington's opposition were what he considered to be evidence of informal acknowledgement, namely an affidavit from decedent's sister, and the programs from the funerals of Pennywell and Pennywell's mother. Washington also claimed that his mother was available to testify.

Before considering the filiation issue, the trial court stated at the hearing on the exceptions that the issue was whether or not the amended complaint related back to the original complaint that was filed within the one-year period following Pennywell's death. The trial court subsequently granted the exceptions of no right of action. The court considered Ratliff v. LSU Bd. of Supervisors , 2009-0012 (La. App. 4 Cir. 5/7/10), 38 So.3d 1068, writs denied , 2010-1312 (La. 9/24/10), 45 So.3d 1079 and 2010-1314 (La. 9/24/10), 45 So.3d 1080, where the appellate court held that the petition for filiation clearly related back to the supplemental and amended petition because it arose out of the same factual situation set forth therein. The trial court noted that if there had been some indication in the original complaint that Washington was Pennywell's child, then the court could reason that the amended complaint raised a filiation complaint that related back. However, based on the supreme court's ruling in Naghi v. Brener , 1 2008-2527 (La. 6/26/09), 17 So.3d 919, the court concluded that the amended complaint filed more than a year after the date of Pennywell's death did not relate back to the original complaint.

Washington appealed the judgment granting the exceptions of no right of action and dismissing his lawsuit.

DISCUSSION

The function of an exception of no right of action is to determine whether a plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. La. C.C.P. art. 927 ; Turner v. Busby , 2003-3444 (La. 9/9/04), 883 So.2d 412. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.

To recover under a claim for wrongful death and survival damages, a plaintiff must fall within the class of persons designated as a beneficiary under La. C.C. arts. 2315.1 and 2315.2. Turner v. Busby , supra . The primary category under both wrongful death and survival actions includes "children" of the decedent. Reese v. State Dept. of Public Safety & Corrections , 2003-1615 (La. 2/20/04), 866 So.2d 244.

The exception of no right of action presents a question of law; therefore, a court conducts a de novo review of the trial court's action on these exceptions. Waggoner v. America First Ins. , 42,863 (La. App. 2 Cir. 1/16/08), 975 So.2d 110.

La. C.C. art. 197, which governs an action by a child to establish paternity, provides:

A child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence.
For purposes of succession only, this action is subject to a peremptive period of one year. This peremptive period commences to run from the day of the death of the alleged father.

We note that the second paragraph of art. 197 article refers to a peremptive period of one year "[f]or purposes of succession only[.]" No other time limit is mentioned in the article. Comment (e) to the article states:

The time period for bringing the paternity action under this Article is limited to succession matters only. This is a change in the law. The time for instituting a paternity action for the purpose of exercising the right to support, to sue for wrongful death, or to claim Social Security benefits or the like, is not limited by this Article.

Therefore, except in the case of a succession, art. 197 eliminated a time limit for bringing a filiation claim.

As this matter does not involve a succession, the peremptive period found in art. 197 does not apply. However, because Washington was born forty-one years before art. 197 was enacted, our inquiry does not end there. We must also examine La. C.C. art. 209, which set forth time limits for filiation claims beginning in 1980 and which art. 197 replaced in 2005.

La. C.C. art. 209 was amended in 1980 to provide methods of proving filiation and the time periods in which to do so. According to Washington's birth certificate, he was born on October 10, 1964. When he turned 19 in 1983, art. 209 read:

Art. 209. Proof of filiation
.....
C. The proceeding required by this Article must be brought within one year of the death of the alleged parent or within nineteen years of the child's birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation.
.....

Therefore, Washington was required at that time to bring a filiation action no later than October 10, 1983, which he failed to do.

The time limit in Article 209 to bring a filiation action was modified again in 1984, so that art. 209(C) read, in part:

If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.

Thus, paragraph (C) established an exception for filiation actions brought for the sole purpose of establishing the right to recover damages in survival and wrongful death actions.

This exception indicated that an illegitimate child who had not timely instituted a filiation action before turning 19 when the father was still alive, nevertheless thereafter had the right to establish filiation for the sole purpose stated above. This interpretation is supported by the jurisprudence. In Reese v. State Dept. of Public Safety & Corrections , supra , the supreme court stated:

Under Article 209(C), the general rule is that a child must bring an action for filiation within one year of reaching the age of majority. Thomas v. Sister of Charity of the Incarnate Word Shreveport , 97-1443, p. 3 (La. 7/8/98), 713 So.2d 466, 467. However, if the child is a minor at the time of his/her alleged parent's death, the child must bring the action within one year of the alleged parent's death, regardless of the child's age. Id. Thereafter, the child may not establish filiation after the occurrence of either of these events-one year from majority or one year from the death of the alleged parent. Id. However, Article 209(C) provides an exception as to when a filiation action may be brought for the sole purpose of establishing the right to recover damages under Article 2315. Id. at pp. 3-4, 713 So.2d at 467-8. Thus, the purpose of this exception appears to be to allow the child who is over the age of nineteen at the time of the alleged parent's death to bring a filiation action, but only for the purposes of establishing the right to recover survival or wrongful death damages and not for any other purpose such as recovering succession rights . Id. Importantly for the case at hand, Article 209(C) also provides that a petition for damages under La. Civ. Code art. 2315 and a petition for filiation may be filed in the same proceeding at the same time.

Emphasis added.

In Gibbs v. Delatte , 2005-0821 (La. App. 1 Cir. 12/22/05), 927 So.2d 1131, writ denied , 2006-0198 (La. 4/24/06), 926 So.2d 548, the First Circuit noted that one of the legislature's main purposes for imposing time limitations in art. 209(C) was to bar future succession claims if a filiation action was not timely instituted. That appellate court stated it was arguable that art. 209(C) did not intend to deprive an illegitimate child of the right to bring a wrongful death claim, nor could it constitutionally do so. The court in Gibbs further stated this was illustrated when the art. 2315 exception was added to paragraph (C) in 1984.

In Succession of Grice , 462 So.2d 131 (La. 1985), the supreme court considered whether art. 209's requirement that filiation proceedings be brought within 19 years of the child's birth was substantially related to a permissible state interest. In upholding the constitutionality of art. 209, the supreme court concluded that the state had a substantial and permissible interest in providing for the just and orderly disposition of property at death when the intestate paternal inheritance of illegitimate children was at issue. The supreme court stated that the exception added in 1984 "illustrate[d] that the state's interest in providing for the just and orderly disposition of property at death is greater than its interest in the distribution of an award for damages under art. 2315." Id. , 462 So.2d at 136.

Finally, we note that comment (e) to art. 197 provides, in part:

Prior law required that a paternity action under former Civil Code Article 209 (rev. 1984) be instituted within nineteen years of the child's birth or within one year from the alleged parent's death, whichever first occurred. If the action was not timely instituted, the child could not thereafter establish his filiation for any purpose, except to recover damages under Civil Code Article 2315. That was a harsh result not justified by any policy consideration.

Accordingly, we conclude that the art. 2315 exception added to art. 209(C) in 1984 applied to Washington's situation. Washington, who turned 19 in 1983 without having instituted a filiation action against his living alleged father, could establish his filiation to recover damages under art. 2315. That is what Washington is attempting to do in this matter.

Pennywell died in 2014. Therefore, Washington's right to establish his filiation for the purpose of recovering damages under art. 2315 was still viable and in existence when Act 192 of 2005 amended and reenacted the first three chapters of Title VII of Book I of the Civil Code, which included art. 197. Section 3 of Act 192 stated, "The provisions of this Act shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date." Because art. 197 removed the time limits for bringing filiation claims except in succession matters, following its effective date, Washington was no longer subject to a time limit to bring a filiation claim for the sole purpose of establishing the right to recover damages under Article 2315.

We note that Article 197 has been held to apply prospectively only, including by this court. See Thomas v. Roberts , 47,411 (La. App. 2 Cir. 9/26/12), 106 So.3d 557 ; Meaux v. Guidry , 2014-155 (La. App. 3 Cir. 6/4/14), 140 So.3d 871, writ denied , 2014-1389 (La. 10/3/14), 149 So.3d 799. However, those cases are readily distinguishable as they held that filiation claims that were already time-barred under art. 209 could not be revived by the enactment of art. 197 as it would deprive the defendant of the right to plead prescription or peremption. As stated earlier, Washington's filiation claim in a 2315 action was not time-barred when art. 197 was enacted, so there was nothing for art. 197 to revive in this instance. More recently, this court applied art. 197 retroactively in the specific context of a succession in Succession of Younger , 50,876 (La. App. 2 Cir. 9/28/16), 206 So.3d 1088, writ denied , 2016-2202 (La. 1/25/17), 215 So.3d 685. Also, in In re Succession of Harrison , 48,432 (La. App. 2 Cir 11/8/13), 129 So.3d 681, writ denied , 2014-0273 (La. 4/4/14), 135 So.3d 1185, this court looked to art. 197 to determine whether a child who was born in 1941 asserted a timely filiation claim in the succession of his alleged father, who died in 2011. This court held that the plaintiff had initiated a filiation claim within a year of his alleged father's death when he asserted that he was the decedent's sole heir in a 2011 motion to compel turnover of succession property.

Finally, compare Ratliff v. LSU Bd. of Supervisors , supra , which the trial court considered before finding that Washington had not timely raised his filiation claim. Ratliff, who died in 2007 after having filed a medical malpractice claim for treatment received in 2003, was the alleged father of Thompson, born in 1972, and Banks, born in 1973. Within a year of their father's death, Thompson and Banks filed a supplemental and amended petition in the medical malpractice lawsuit asserting survival and wrongful death claims. However, it was more than a year after their father's death that they filed a petition for filiation. The Ratliff court concluded that under arts. 209(C), 2315.1, and 2315.2, the supplemental and amended petition asserting their status as children of Ratliff was timely and interrupted prescription for the filing of the filiation petition. We decline to follow Ratliff insofar as art. 197 was not considered to resolve the issue of whether the cumulated filiation action was filed timely.

In summary, as long as a petition is filed timely, a plaintiff has no peremptive limits in which to assert his right of action arising out of the relationship with his father in a non-succession case. Washington timely requested a Medical Review Panel ("Panel") within one year of Pennywell's death. He amended his Panel complaint to allege that he was the child and sole heir of Pennywell. After the dissolution of the Panel, Washington timely filed this medical malpractice lawsuit. The defendants then contested Washington's right to bring this lawsuit by filing the peremptory exception of no right of action. Therefore, no time limit was imposed upon Washington that required him to assert his filiation prior to the defendants' filing of the exception of no right of action.

Based on the foregoing discussion, we conclude that the trial court erred in granting the exceptions of no right of action on the ground that Washington did not timely bring a filiation claim.

Defendants argue that even if Washington's right to assert filiation has not expired, the judgment should still be affirmed because Washington failed to prove filiation. Washington was required by art. 197 to prove paternity through clear and convincing evidence.

During the hearing on the exceptions, Washington's attorney referred to the affidavit from Pennywell's sister and the programs from the funerals of Pennywell and his mother. His attorney also stated that Washington's mother was still alive and could testify. Before taking the matter under advisement, the trial court stated:

Just for ruling only so I can let you know what I'm looking for, simply put is whether or not the amended complaint relates back to the original complaint which was filed within the one year period. Simple issue as far as when I read your exception and opposition that is the issue, even though there were-I think somebody just answered, Mr. Bookter, or someone just said, I'm just riding along with the other one. So, that's the only issue that I will be looking at.

The court granted the exceptions of no right of action because the amended complaint could not relate back to the original complaint, which had not given any indication that Washington was Pennywell's child. Accordingly, the trial court never considered, nor was there presented, any evidence in support of the filiation claim at the hearing that dealt exclusively with the issue of whether Washington had timely made a filiation claim. We remand this matter for the trial court to conduct a filiation hearing and to reconsider the exceptions of no right of action. In doing so, we are not suggesting whether Washington will be able to meet the onerous clear and convincing standard.

CONCLUSION

At appellees' costs of $1,100.00, the judgment is VACATED and the matter REMANDED.

MOORE, J., dissents and assigns reasons.

MOORE, J., dissents.

I respectfully dissent. I do not disagree with the majority's exegesis of La. C.C. art. 197 and former La. C.C. art. 209, or with the ultimate conclusion that the now-repealed Art. 209 C set no time limit on the action for filiation if the plaintiff was seeking tort damages on the alleged parent's behalf.

However, the real issue in the case is one of relating back . Using the name Phillip Washington Pennywell, the plaintiff filed a timely request for MRP for the wrongful death of Willie Pennywell. Phillip made no allegation of his relationship to the decedent. Later, after the prescriptive period for medical malpractice had elapsed, he filed an amended request for MRP alleging he was the child and sole heir of the decedent. (Still later, using a different name, he filed this medical malpractice suit, again making no allegation of his relationship to the deceased.) The defendants filed exceptions of no right of action on grounds that there was no proof that Phillip was the son of the decedent. Hence, the issue is whether the amended request for MRP, which raised the issue of filiation, related back to the original request for MRP, which did not.

The general rule for relating back is that "a comparison of the amended petition to the original petition shows that the original petition gave fair notice of the factual situation out of which the amended petition arises." Giroir v. South Louisiana Med. Ctr. , 475 So.2d 1040 (La. 1985). In Reese v. State , 2003-1615 (La. 2/20/04), 866 So.2d 244, the Supreme Court explicitly found that the plaintiff's original petition contained an allegation of paternity, viz. , that he was "a surviving child of" the deceased. In the instant case, the district court was, in fact, legally correct when it used this fact to distinguish Ratliff v. LSU Bd. of Sup'rs , 2009-0012 (La. App. 5/7/10), 38 So.3d 1068, writ denied , 2010-1314, -1312 (La. 9/24/10), 45 So.3d 1079, 1080.

Phillip's original request for MRP, by contrast, makes absolutely no allegation of paternity. It is incomprehensible that total silence as to an issue can place the defendant on fair notice. Using the majority's analysis, any petition would be sufficient to preserve the claim of filiation in a tort action.

I would affirm the district court's sound judgment.

      As amended in 1980, La. C.C. art. 209 provided that a civil proceeding to establish filiation was required to be brought within six months after the death of the alleged parent, or within 19 years of the illegitimate child's birth, whichever occurred first. If no proceeding was timely instituted, the claim of an illegitimate child or on its behalf to rights in the succession of the alleged parent was forever barred. The time limitation ran against all persons, including minors and interdicts.
      Article 209 was amended again the following year. It required that the filiation proceedings be brought "within one year of the death of the alleged parent or within nineteen years of the child's birth, whichever first occurs." The article stated, "[i]f the proceeding is not timely instituted, the child may not thereafter establish his filiation." This same time limitation remained after art. 209 was amended in 1982.

      In 1986, the legislature restructured the survival and wrongful death actions by reenacting Article 2315, and enacting 2315.1, the survival action, and 2315.2, the wrongful death action. Although art. 209 was not amended to correspond with these changes, the connection between art. 209 and the new articles remained clear.

      In reaching that result, this court relied on Comment (e) to art. 197 as well as La. C.C. art. 870. Article 870 provides that succession rights are governed by the law in effect on the date of the decedent's death. The alleged father died in 2015.

      The defendants in Ratliff argued on appeal that Thompson's and Banks's rights to filiate were perempted under art. 197, or alternatively as required by art. 209(C), their claims had prescribed because they had not filiated with Ratliff prior to their 19th birthdays. Thompson and Banks countered that the art. 2315 exception in art. 209(C) allowed them to bring the filiation action within a year of Ratliff's death and cumulate that action with the one to recover damages. They also pointed out that the time limit in art. 197 only applied to succession proceedings.

      When a medical review panel is requested, the person requesting the medical review panel does not have to assert their relationship to the person against whom the malpractice was committed, according to the statutes regarding medical malpractice. See La. R.S. 40:1231.8 and 40:1237.2.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Jaderrick BARRETT, Appellant
    No. 51,921-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Monroe, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, REBECCA A. EDWARDS, BRITNEY A. GREEN, HOLLY McGINNESS, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, GARRETT, and STONE, JJ.
   WILLIAMS, J.

The defendant, Jaderrick Barrett, was charged by bill of indictment with the aggravated rape of G.K., in violation of La. R.S. 14:42, and the molestation of A.C., in violation of La. R.S. 14:81.2. Following a jury trial, the defendant was found guilty as charged. He was sentenced to serve life in prison without the benefit of parole, probation or suspension of sentence for the aggravated rape conviction, and a concurrent sentence of 10 years at hard labor for the molestation conviction. The trial court also imposed 30 days' "default time in lieu of court costs" for both sentences. For the following reasons, we affirm the defendant's convictions. We amend the defendant's life sentence to provide that he is eligible for parole consideration under the criteria set forth in La. R.S. 15:574.4(D). Additionally, we amend the defendant's sentences to delete those portions that impose default jail time in lieu of payment of court costs. Further, we remand this matter to the trial court with instructions to provide the defendant with the appropriate written notice with regard to the sex offender registration requirements.

FACTS

In 2008, the defendant, Jaderrick Barrett (also known as "J.D."), was 16 years old. He entered an abandoned house with G.K., a 12-year-old mentally challenged girl, pulled down her panties and engaged in vaginal and anal sexual intercourse with her. The Shreveport Police Department investigated the matter but the police officers were unable to locate the defendant. Subsequently, the active investigation stalled.

In December 2013, the defendant, who by then was 22 years old, was spending the night at the home of a family friend. A.C., his friend's 13-year-old daughter, was asleep in a bedroom of the house. A.C. stated that the bedroom contained bunk beds; she and her five-year-old brother were sleeping on the bottom bunk, and her mother instructed the defendant to sleep on the top bunk. According to A.C., the defendant entered the bedroom, lay on the floor next to her bed and began to touch her breasts and insert his finger inside her vagina. When the defendant heard A.C.'s mother near the door of the bedroom, he stopped his actions and climbed onto the top bunk of the bed. A.C.'s mother entered the bedroom and asked if she was alright; A.C. stated that she told her mother that she was "fine" because she was afraid to tell her what the defendant was doing to her. After A.C.'s mother left the room, the defendant pulled A.C. onto the floor, pulled her shorts down and partially penetrated her vagina with his penis until she was able to push him off of her. During the investigation, A.C. revealed prior acts of molestation against her by the defendant. Additionally, while investigating A.C.'s allegations, the police department determined that the defendant was the same individual implicated in the 2008 case regarding G.K.

The defendant was subsequently arrested and charged by bill of indictment with the aggravated rape of G.K., in violation of La. R.S. 14:42, and the molestation of A.C., in violation of La. R.S. 14:81.2. Following a trial, a unanimous jury found the defendant guilty of the molestation charge; the same jury found him guilty of aggravated rape by a vote of 11-1. The trial court denied the defendant's motion for post-verdict judgment of acquittal and summarily sentenced him to the mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence for the aggravated rape conviction. With regard to the molestation conviction, the defendant was sentenced to serve 10 years at hard labor; the sentences were ordered to be served concurrently. Further, the trial court imposed 30 days' default time in lieu of the payment of court costs for both sentences.

Subsequently, the trial court denied the defendant's motion to reconsider sentence.

The defendant appeals.

DISCUSSION

The defendant contends the trial court erred in sentencing him to serve life in prison without the benefit of parole, probation or suspension of sentence for the aggravated rape conviction. He argues that the sentence is constitutionally excessive because the offense was committed when he was a juvenile. Therefore, according to the defendant, the trial court was mandated to sentence him according to the principles set forth in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012), and Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed. 2d 825 (2010). Further, the defendant argues as follows: the trial court erroneously failed to explore some of the "challenges" he experienced in his life prior to imposing his sentence; the trial court failed to consider his "potential for reform"; the trial court failed to craft a particularized sentence based upon his personal history and his "situation in life"; the trial court failed to order or consider a presentence investigation ("PSI") report; his sentence should not have been imposed without the benefit of parole pursuant to Graham v. Florida , supra ; and he should have been sentenced under the responsive verdict of attempted aggravated rape because, at the time he committed the offense, there was no constitutional penalty for aggravated rape committed by a person under the age of 18. See , State v. Valentine , 364 So.2d 595 (La. 1978) ; State v. Bryant , 347 So.2d 227 (La. 1977), and State v. Craig , 340 So.2d 191 (La. 1976).

The penalty for a conviction of aggravated rape is a mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. La. R.S. 14:42. However, in Graham v. Florida , supra , the United States Supreme Court held that "for a juvenile offender who did not commit a homicide, the Eighth Amendment forbids the sentence of life without parole." Id. , 560 U.S. at 74, 130 S.Ct. at 2030. The Court further stated:

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment prohibits a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.

Id. at 560 U.S. at 75, 130 S. Ct. at 2030.

Thereafter, in State v. Leason , 2011-1757 (La. 11/23/11), 77 So.3d 933, and State v. Shaffer , 2011-1756 (La. 11/23/11), 77 So.3d 939, the Louisiana Supreme Court addressed the claims of juvenile offenders, at least one of whom had been convicted of aggravated rape and sentenced to life with an express restriction on parole eligibility. The Court amended that defendant's sentence to delete the restriction on parole eligibility and directed the Department of Corrections to revise the defendant's prison master to reflect that his sentence would no longer be without the benefit of parole. In both cases, the Court reiterated that it was not ordering the defendants to be released on parole. It stated, "The determination of whether relators may be released on parole falls within the exclusive purview of the Board of Parole." State v. Leason , supra , at 937 ; State v. Shaffer , supra , at 943.

Additionally, in State v. Leason , supra , and State v. Shaffer , supra , the three defendants urged an argument similar to that of the defendant herein, i.e. , pursuant to Graham v. Florida , supra , the appropriate remedy would be to resentence them in accordance with the penalty provisions for the next lesser and included responsive verdict of attempted aggravated rape. The Court rejected that argument, thereby implicitly rejecting, for those defendants, the remedy afforded in State v. Craig , supra .

Following the Court's decisions in State v. Leason , supra , and State v. Shaffer , supra , the legislature enacted La. R.S. 15:574.4, which provides, in pertinent part:

* * *
D. (1) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment who was under the age of eighteen years at the time of the commission of the offense, except for a person serving a life sentence for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ), shall be eligible for parole consideration pursuant to the provisions of this Subsection[.]
* * *

Following the ruling in State v. Shaffer , supra , and the enactment of La. R.S. 15:574.4, this Court considered a similar issue in State v. Hedgespeth , 47,523 (La. App. 2 Cir. 11/14/12), 107 So.3d 743, writ denied , 2012-2594 (La. 5/3/13), 113 So.3d 210. In that case, the defendant had been convicted of aggravated rape committed when he was 17 years old. He was sentenced to life in prison without the benefit of parole, probation or suspension of sentence. In the wake of Graham v. Florida , supra , the defendant filed a motion to correct an illegal sentence. Subsequently, the trial court resentenced the defendant to life imprisonment but removed the restrictions with regard to the benefits for parole, probation and suspension of sentence. On appeal, this Court held that the appropriate remedy for a mandatory life sentence for an offense committed when the defendant was a juvenile is to modify the life sentence and make the defendant eligible for parole consideration in accordance with the criteria set forth in La. R.S. 15:574.4.

In the instant case, in accordance with the pronouncements set forth in State v. Shaffer , supra , and State v. Hedgespeth , supra , we find that the appropriate remedy for the defendant's sentence of life imprisonment is to modify the life sentence to make the defendant eligible for parole consideration under the criteria set forth in La. R.S. 15:574.4(D). We hereby order the Department of Corrections to revise the defendant's prison master to reflect that his sentence is no longer without the benefit of parole. The defendant's remaining arguments are without merit.

The defendant also contends the trial court erred in ordering the mandatory life sentence for his aggravated rape conviction. He argues that the sentence imposed was constitutionally excessive.

In reviewing a claim of excessive sentence, the appellate court first considers whether the record shows that the trial court took cognizance of the sentencing guidelines in La. C. Cr. P. art. 894.1. State v. Jackson , 51,011 (La. App. 2 Cir. 1/11/17), 211 So.3d 639 ; State v. Taylor , 49,467 (La. App. 2 Cir. 1/14/15), 161 So.3d 963. The record should reflect adequate consideration of those guidelines. Id.

The reviewing court next determines whether the sentence is constitutionally excessive by considering whether the sentence is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. La. Const. art. I, § 20 ; State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Lindsey , 50,324 (La. App. 2 Cir. 2/24/16), 189 So.3d 1104. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. Id.

It is within the legislature's prerogative to determine the length of the sentence imposed for the crimes classified as felonies, and the courts are charged with applying these punishments unless they are found to be unconstitutional. State v. Morning , 49,300 (La. App. 2 Cir. 10/1/14), 149 So.3d 925, writ denied , 2014-2354 (La. 2/19/16), 186 So.3d 1179 ; State v. Armstrong , 32,279 (La. App. 2 Cir. 9/22/99), 743 So.2d 284, writ denied , 1999-3151 (La. 4/7/00), 759 So.2d 92. Accordingly, the decision to assess mandatory life sentences is also within the prerogative of the legislature. State v. Chandler , 41,063 (La. App. 2 Cir. 9/8/06), 939 So.2d 574, writ denied , 2006-2554 (La. 5/11/07), 955 So.2d 1277. Courts have repeatedly rejected the assertion that the mandatory life sentence for aggravated rape is a violation of the prohibition against excessive punishment found in the Louisiana Constitution. State v. Foley , 456 So.2d 979 (La. 1984) ; State v. Morning , supra ; State v. Chandler , supra ; State v. Ingram , 29,172 (La. App. 2 Cir. 1/24/97), 688 So.2d 657, writ denied , 1997-0566 (La. 9/5/97), 700 So.2d 505.

In State v. Dorthey , supra , and State v. Johnson , 1997-1906 (La. 3/4/98), 709 So.2d 672, the Louisiana Supreme Court addressed the issue of mandatory sentences in the context of the habitual offender law. The Court held that the downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case. State v. Thomas , 50,898 (La. App. 2 Cir. 11/16/16), 209 So.3d 234 ; State v. Chandler , supra . This rule has been extended to mandatory sentences beyond habitual offender cases. See State v. Chandler , supra , citing State v. Fobbs , 1999-1024 (La. 9/24/99), 744 So.2d 1274.

The "rare circumstances" in which a mandated sentence can be altered are even less likely in the case of a life sentence chosen by the legislature for a single crime, such as aggravated rape or second degree murder. State v. Chandler , supra . In such crimes, unlike the mandatory minimum sentence under the habitual offender law, the "tailoring" of the sentence by the legislature was for life because the culpability of offenders and the gravity of the offenses are so great. Id.

Likewise, where there is a mandatory sentence, there is no need for the trial court to justify, under La. C. Cr. P. art. 894.1, a sentence that it is legally required to impose. State v. Morning , supra ; State v. White , 45,915 (La. App. 2 Cir. 2/2/11), 58 So.3d 493. It would be an exercise in futility for the trial court to discuss the factors enumerated in that article when the court has no discretion in sentencing the defendant. State v. Robinson , 47,437 (La. App. 2 Cir. 11/14/12), 106 So.3d 1028, writ denied , 2012-2658 (La. 5/17/13), 117 So.3d 918. Further, a presentence investigation report is an aid to help the court, not a right of defendant, and the court is not required to order one. La. C. Cr. P. art. 875 ; State v. Bell , 377 So. 2d 275 (La. 1979) ; State v. Houston , 50,126 (La. App. 2 Cir. 11/18/15), 181 So.3d 188.

Here, La. R.S. 14:42(D) mandates that a life sentence be imposed upon the defendant for the aggravated rape conviction. In State v. Graham , supra , the Supreme Court did not find unconstitutional the life sentence for juvenile offenders convicted of nonhomicide offenses. Further, because the defendant's life sentence was mandatory under the statute, the trial court was not required to particularize or tailor the sentence to the defendant or to comply with La. C. Cr. P. art. 894.1. State v. Chandler , supra ; State v. Morning , supra . Likewise, a PSI report was not required for the imposition of the mandatory term. State v. Houston , supra . Furthermore, the mandatory life sentence for aggravated rape has consistently been upheld as constitutional. Accordingly, it was the defendant's burden to show, by clear and convincing evidence, that he was the exceptional defendant for which downward departure from the mandatory minimum sentence was justified.

Our review of the record reveals that the defendant did not present any evidence that he was exceptional, in either the sentencing hearing or in the motion to reconsider sentence. The defendant's sentence is presumed to be constitutional because he has failed to provide evidence to rebut the presumption or to show that his particular circumstances are an exception to the constitutional application of the mandatory sentence for aggravated rape. This assignment lacks merit.

ERRORS PATENT

In accordance with La. C. Cr. P. art. 920, we have reviewed this record for errors patent. We have found errors with regard to the defendant's sentence.

Aggravated rape is a sex offense defined by La. R.S. 15:541, and La. R.S. 15:542 provides registration requirements for sex offenders. La. R.S. 15:543 requires that the trial court notify a defendant convicted of a sex offense, in writing, of the registration requirements. The statute also requires that such notice be included on any guilty plea forms, judgments and sentence forms provided to the defendant, and that an entry be made in the court minutes confirming the written notification. This record does not show that the trial court provided the defendant with verbal or written notice of his obligation to register as a sex offender. Therefore, we hereby remand this matter to the trial court to provide the appropriate written notice to the defendant of the sex offender registration requirements and to confirm the written notification on the record. State v. Williams , 49,249 (La. App. 2d Cir. 10/1/14), 149 So.3d 462, writ denied , 2014-2130 (La. 5/22/15), 173 So.3d 1167 ; State v. Hough , 47,308 (La. App. 2d Cir. 8/1/12), 103 So.3d 477, writ denied , 2012-1936 (La. 3/8/13), 109 So.3d 357.

Additionally, the trial court erroneously ordered the defendant to pay court costs or serve 30 days in the parish jail in lieu of payment. An indigent defendant cannot be subjected to default jail time in lieu of the payment of a fine, costs or restitution. State v. Lewis , 48,373 (La. App. 2 Cir. 9/25/13), 125 So.3d 482 ; State v. Mack , 30,832 (La. App. 2 Cir. 6/24/98), 715 So.2d 126. A defendant's indigent status in such a situation may be discerned from the record. Where a defendant is represented at trial by the indigent defender's office, or on appeal by the Louisiana Appellate Project, this Court has considered it error for a trial court to impose jail time for failure to pay court costs. State v. Lewis , supra .

In the instant case, the defendant's indigent status has been shown by his representation at trial by the indigent defender's office and his current representation on appeal by the Louisiana Appellate Project. Thus, the imposition of default jail time by the trial court was in error. Accordingly, we hereby instruct the trial court to delete that portion of the defendant's sentence that includes default jail time for failure to pay court costs.

CONCLUSION

For the reasons set forth herein, we affirm the defendant's convictions. We amend the defendant's life sentence to reflect that he is eligible for parole consideration under the criteria set forth in La. R.S. 15:574.4(D). We hereby order the Department of Corrections to revise the defendant's prison master to reflect that his sentence is no longer without the benefit of parole. Additionally, we amend the defendant's sentences to delete those portions that impose default jail time in lieu of payment of court costs. Further, we remand this matter to the trial court with instructions to provide the defendant with the appropriate notice with regard to the sex offender registration requirements and to note its compliance on the record.

CONVICTIONS AFFIRMED; SENTENCES AMENDED IN PART; AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

      The victims in this matter will be referred to by their initials for confidentiality purposes in accordance with La. R.S. 46:1844(W).

      The defendant's date of birth is August 11, 1991.

      G.K.'s date of birth is September 1, 1995.

      During the trial, G.K. testified that "J.D." was accompanied by another man, known to her as "Pooh Bear." She stated that Pooh Bear also engaged in sexual intercourse with her and threatened to "hurt [her]" if she told anyone about the incident.

      A.C.'s date of birth is January 6, 2000. A.C. testified that she had known the defendant all of her life and she had always thought of him as a cousin.

      The investigation also revealed that in 2009, the defendant had been charged with carnal knowledge of a juvenile regarding a 14-year-old girl.

      The defendant filed his motion for appeal more than 30 days after the denial of his motion to reconsider sentence. Therefore, this appeal is considered as an out-of-time appeal.

      "Aggravated rape" is now "first degree rape." La. R.S. 14:42(E) provides:
      For all purposes, "aggravated rape" and "first degree rape" mean the offense defined by the provisions of this Section and any reference to the crime of aggravated rape is the same as a reference to the crime of first degree rape. Any act in violation of the provisions of this Section committed on or after August 1, 2015, shall be referred to as "first degree rape."

      In State v. Craig , supra , the defendant was convicted of aggravated rape and was sentenced to death. The Court declared the defendant's death sentence for aggravated rape unconstitutional, finding that the jury was not given an opportunity to consider aggravating and mitigating factors. Further, the Court found that at the time the crime was committed, "the only responsive verdicts to a charge of aggravated rape were guilty; guilty of attempted aggravated rape; guilty of simple rape; not guilty." Additionally, at the time the crime was committed, attempted aggravated rape was punishable by imprisonment for not more than 20 years, and the sentencing range for simple rape was one to 20 years. Consequently, the Court remanded the case for resentencing.


author: BROWN, C.J.

text:
    Paul SCHAUF, Plaintiff-Appellee v. Mary Angela SCHAUF, Jo Ann Parker Schauf, Michael Shannon, and Schauf Family, LLC, Defendants-Appellants
    No. 51,919-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 25, 2018 Rehearing Denied May 22, 2018
    COTTON, BOLTON, HOYCHICK, & DOUGHTY, By: M. Kyle Moore, Counsel for Appellants
    BREAZEALE, SACHSE & WILSON, LLP, By: Troy B. Villa, Carroll Devillier, Jr., Sunny M. West, Baton Rouge, Counsel for Appellee
    Before BROWN, COX, and STEPHENS, JJ.
   BROWN, C.J.

This appeal arises from litigation concerning the dissolution of the Schauf Family LLC. Cross motions for summary judgment were filed. Defendants, three of the four owners, have appealed from a judgment in favor of plaintiff, Paul Schauf, a member and owner, rescinding the transfer of assets of the limited liability company and declaring null and void defendants' vote to dissolve the LLC, their appointment of a liquidator, and the transfer of the company. For the reasons set forth below, we reverse the summary judgment ruling and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On January 24, 2001, the Schauf Family LLC was formed by Angela M. Schauf as a family business for herself and her four children, with her having ownership of 50% of the LLC and her four children each having an equally divided interest (12.5%) in the remainder of the LLC, subject to a usufruct in favor of herself. The four children were Peter T. Schauf, Paul M. Schauf, Mary Angela Schauf, and Kathryn L. Schauf. The five Schaufs executed an Operating Agreement ("OA") and all were members of the LLC. The only asset of the LLC is a tract of farm land presently being leased. Thereafter, the mother, Angela M. Schauf, died. Her 50% interest was divided equally among the four remaining members, resulting in each member owning a 25% interest in the LLC.

Thereafter, two more members, Peter T. Schauf and Kathryn L. Schauf, died, leaving their interests to their respective spouses, Jo Ann Parker Schauf and Michael Shannon. Thus, at this time, there remained two original members in the LLC, plaintiff, Paul Schauf, and his sister, Mary Angela Schauf.

Tensions developed between the parties. The three defendants, Jo Ann Parker Schauf, Michael Shannon, and Mary Angela Schauf, wanted to dissolve the LLC. They wanted to sell the LLC's asset and divide the proceeds equally among the four ownership interests, so they could be "out of the LLC." Plaintiff, Paul Schauf, twice refused to buy out defendants' interests. Dissolution voting ballots were mailed to all owners of the LLC. Votes were collected 15 days later. Except for plaintiff, all voted to dissolve the LLC and appoint Jo Ann Parker Schauf, as liquidator. On June 8, 2016, after the vote for dissolution and appointment of Jo Ann as liquidator, defendants again offered plaintiff the opportunity to buy out the other members of the LLC, giving him until June 22, 2016, to respond. After that date passed with no response from plaintiff, defendants gave him notice that they were moving forward with the dissolution.

On July 5, 2016, plaintiff, Paul Schauf, filed the instant lawsuit asking the trial court to declare null and void the appointment of a liquidator and defendants' vote to dissolve the LLC. According to plaintiff, the LLC must exist for 25 years before it can be dissolved under Article 4 of the Articles of Organization ("AO"), and two defendants, Jo Ann Parker Schauf and Michael Shannon, are not members but assignees of the LLC. Defendants answered the suit and filed a reconventional demand, claiming that their majority ownership rights in the LLC gave them voting power as indicated in Paragraph 6 of the OA, which was executed by plaintiff together with the deceased members at the time the LLC was formed, back on January 24, 2001. Defendants requested that the trial court recognize the validity of their majority vote to dissolve and wind up the entity. They also requested that they be allowed to grant authority to Jo Ann Parker Schauf, one of the defendants, to sell the assets of the LLC and distribute the proceeds to its owners.

After the lawsuit and the reconventional demand were filed, the other original member, Mary Angela Schauf, died and defendants filed a motion for substitution of party, Jo Ann Parker Schauf, who was executrix of Mary Angela's estate. This motion also requested a preliminary injunction, and later a permanent injunction, prohibiting plaintiff, Paul Schauf, from taking further action.

On September 1, 2016, a stipulated judgment was executed, wherein all parties agreed that no party involved in the current litigation or the LLC would take any action to change the status, interest, OA, or AO of the LLC, nor would they attempt to sell, convey, or encumber the property owned by the LLC in any way until there was a final resolution of this matter.

The parties filed motions for summary judgment, agreeing that there is no dispute as to the material facts surrounding their rights. A hearing was held, with a stipulation that there was no factual dispute. The trial court granted plaintiff's motion for summary judgment, declaring null and void defendants' vote to liquidate, the appointment of a liquidator, and any transfer of assets of the LLC, and ordering the rescission of any such transfer. The trial court denied defendants' motion for summary judgment, declaring that they have no authority to dissolve and liquidate assets of the LLC and assessing all costs to defendants under the default rule of Louisiana LLC law. Defendants filed the instant appeal.

DISCUSSION

Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. This procedure is favored and shall be construed to accomplish those ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if the motion, memorandum, and supporting documents show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Elliott v. Continental Casualty Co. , 06-1505 (La. 02/22/07), 949 So.2d 1247 ; Longleaf Investments, L.L.C. v. Cypress Black Bayou Recreation and Water Conservation District , 49,508 (La. App. 2 Cir. 02/26/15), 162 So.3d 479, writ denied , 15-0619 (La. 05/22/15), 171 So.3d 251.

On appeal, defendants contend in their first assignment of error that the clear, explicit, and intentional language in Paragraph 6 of the OA grants individuals with an "ownership interest" in the LLC the right to vote on specific matters listed in Paragraph 6 of the OA, including, but not limited to the right to vote to dissolve and wind up the LLC. However, Paragraph 6 of the OA, states: "A vote of a majority of ownership interests shall be required for approval of the following matters:

a. Election of a manager or managers;
b. Dissolution and winding up of the company;
c. Merger or consolidation of the company; and
d. Amendment to the Articles of Organization or this Operating Agreement." (Emphasis added).

This Court finds that the language in the various, relevant provisions of the Operating Agreement and the Articles of Incorporation are clear and unambiguous, and must be interpreted as written. As such, we note that Paragraph 6 of the Operating Agreement clearly dictates that defendants, with ownership interests in the LLC as a result of being heirs and legal representative of the deceased members, only have the rights to vote to approve the vote of the members concerning the four delineated matters mentioned in that paragraph, one of which is dissolution.

Under the Louisiana LLC Law, the death of a member causes the decedent's membership interest in the LLC to cease, and the decedent member's executor, administrator, or other legal representative is treated as an assignee of the decedent's interest in the LLC.

Specifically, La. R.S. 12:1333(A) provides:

Except as otherwise provided in the articles of organization or a written operating agreement, if a member who is an individual dies or a court of competent jurisdiction adjudges him to be incompetent to manage his person or his property, the member's membership ceases and the member's executor, administrator, guardian, conservator, or other legal representative shall be treated as an assignee of such member's interest in the limited liability company.

Except as otherwise provided in an LLC's articles of organization or a written operating agreement, an assignee of a member's interest shall not become a member or participate in the management of the LLC unless the other members unanimously consent in writing. La. R.S. 12:1332(A)(1). Thus, an LLC's articles of organization or a written operating agreement could, but have not in this case, provide that a person who inherits a decedent member's interest in the LLC would become a member of the LLC or would have certain rights that are provided only to members. Louisiana LLC Law also provides that an assignee is entitled to receive distributions to which the assignor was entitled, to the extent assigned. La. R.S. 12:1330(A).

The rule treating a decedent member's legal representative as an assignee of the decedent's interest may be problematic. As an assignee of the decedent member's interest, the decedent's legal representative is entitled only to receive distributions from the LLC as authorized by the LLC's operating agreement or by the members, to share in the LLC's profits and losses, and to receive allocations of the LLC's items of income, gain, loss, deduction, and credit. A decedent member's legal representative may not become a member of the LLC or exercise any of the rights or powers of a member unless the LLC's articles of organization or a written operating agreement provides otherwise or the legal representative is admitted as a member of the LLC. Thus, the legal representative of a decedent member may not participate in the management of the LLC, vote on the LLC's affairs, or inspect the LLC's records unless the LLC's articles of organization or an operating agreement specifically accords such management rights to the decedent's legal representative or the legal representative is admitted as a member of the LLC. Without the right to vote or inspect records, a decedent member's legal representative will have little ability to protect the interests of the decedent's estate or heirs with respect to the decedent's interest in the LLC. See Susan Kalinka, Jeffrey W. Koonce, and Philip T. Hackney, Limited Liability Companies and Partnerships: A Guide To Business and Tax Planning , § 5:104, in 9A Louisiana Civil Law Treatise (4th ed. 2015).

An LLC, however, can be dissolved under La. R.S. 12:1334(4) through the entry of a decree of dissolution under La. R.S. 12:1335, entitled "Judicial Dissolution," which provides in pertinent part:

On application by or for a member , any court of competent jurisdiction may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement. (Emphasis added.)

When considering what is "reasonably practicable," we note that in general, individuals cannot be forced to remain co-owners in indivision of an asset or real property. See La. C.C. art. 807, which says, "No one may be compelled to hold a thing in indivision with another unless the contrary has been provided by law or juridical act. Any co-owner has a right to demand partition of a thing held in indivision. Partition may be excluded by agreement for up to fifteen years, or for such other period as provided in La. R.S. 9:1702 or other specific law."

However and as provided by Louisiana Limited Liability Company law, individuals with ownership interests in a limited liability company do not own the real property or the assets of the LLC, the LLC owns these assets. See La. R.S. 12:1329. Therefore, owners of an LLC, unless they are also members of the LLC or except as otherwise provided in the articles of organization or a written operating agreement, cannot petition for partition of the assets or "the thing" held by the LLC. Only members of the LLC can apply to the court for judicial dissolution. La. R.S. 12:1335. Except as otherwise provided in the articles of organization or a written operating agreement, only members of the LLC can dissolve the LLC and liquidate its assets or apply to the court for liquidation of the LLC assets. See La. R.S. 12:1329 -1339, specifically, La. R.S. 12:1329 -1330, La. R.S.12:1332 -1334, and La. R.S. 12:1336.

See the following cases from other circuit courts, which are instructive in determining what constitutes "reasonably practicable": In re Cat Island Club, L.L.C , 11-1557 (La. App. 3 Cir. 05/02/12), 94 So.3d 75 ; South Louisiana Ethanol, L.L.C. v. CHS-SLE Land , 14-0127 (La. App. 4 Cir. 02/04/15), 161 So.3d 83, writ denied , 15-0481 (La. 05/15/15), 170 So.3d 967 ; Weinmann v. Duhon , 01-1267 (La. App. 5 Cir. 03/26/02), 818 So.2d 206, writ denied , 02-2082 (La. 11/01/02), 828 So.2d 574, on subsequent appeal , 08-186 (La. App. 5 Cir 10/28/08), 997 So.2d 647, writs denied , 08-2814, 08-2085, 08-2830 (La. 03/13/09), 5 So.3d 118.

In the case sub judice , Mary Angela Schauf was an original member of the family LLC when this petition was filed and she filed a reconventional demand to dissolve the LLC. During the pendency of this litigation, Mary Angela Schauf died. Her death did not terminate the dissolution process once it had been initiated. Her executrix, Jo Ann Parker Schauf, could continue the dissolution pursuant to La. R.S. 12:1335.

With regard to the second assignment of error, Article 4 of the AO provides that "This limited liability company shall dissolve twenty-five (25) years from its date of formation unless extended by the members."

We find that there is no conflict between Article 4 of the OA and Paragraph 6 of the LLC's Operating Agreement, as the former requires a term of 25 years and the latter requires an early dissolution as ruled by the trial court. La. R.S. 12:1305(C)(4) provides, in pertinent part that "[t]he articles of organization may set forth the following:... (4) The latest date, if any, on which the limited liability company is to dissolve ..."

Article 4 does not state that the LLC "shall remain in existence" or that it "shall not be dissolved before 25 years" have passed. By looking at the plain language of the provision, in conjunction with the applicable Louisiana LLC law, it is clear that this provision was put in to limit the term of the LLC, as allowed under La. R.S. 12:1305(C)(4), and not to require its existence for a period.

CONCLUSION

For the above reasons we find that the trial judge correctly found that the assignees had no right to dissolve the LLC. However, Mary Angela Schauf was a member when she filed a demand for dissolution and this demand survives her death. We therefore reverse the granting of the motion for summary judgment and remand the matter to the district court for further proceedings, regarding Mary Angela Schauf's petition for dissolution pursuant to La. R.S. 12:1329 -1339. Costs of this appeal are assessed against plaintiff.

APPLICATION FOR REHEARING

Before BROWN, GARRETT, STONE, COX and STEPHENS, JJ.

Rehearing denied.

      Defendants offered to sell to plaintiff the land at $5,100 per acre. At oral argument, plaintiff's counsel said that the land is worth about $600,000 without mentioning the acreage.