text:
    STATE of Louisiana v. Michael D. ELLIS
    No. 2018-KH-0845
    Supreme Court of Louisiana.
    April 8, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Applicant fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Applicant has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant the writ.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Louisiana v. Hassan A. ABDUL IV
    No. 2018-KH-0929
    Supreme Court of Louisiana.
    April 8, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application was not timely filed in the district court, and applicant fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Applicant has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant the writ in part.


author: PER CURIAM

text:
    IN RE: Michael Keith LEBLANC
    NO. 2019-B-0165
    Supreme Court of Louisiana.
    April 8, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Michael Keith LeBlanc, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 2002. In 2007, he received an admonition for engaging in a conflict of interest and in conduct prejudicial to the administration of justice. Then, in 2008, the ODC commenced an investigation into allegations that respondent neglected legal matters, failed to communicate with clients, and failed to promptly refund unearned fees. Thereafter, respondent failed to cooperate with the ODC in the investigation. Respondent was placed on interim suspension pursuant to a joint motion of the parties. In re: LeBlanc , 08-1688 (La. 7/29/08), 987 So.2d 248. Thereafter, we accepted a petition for consent discipline and suspended respondent from the practice of law for three years, retroactive to the date of his interim suspension, for the above misconduct. In re: LeBlanc , 12-1487 (La. 9/14/12), 98 So.3d 288 (" LeBlanc I "). Respondent has not been reinstated and, thus, remains suspended from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the instant proceeding.

FORMAL CHARGES

On August 4, 2017, the ODC was contacted by law enforcement for the Jackson County Sheriff's Department in Pascagoula, Mississippi. The ODC was advised that respondent was the subject of an arrest warrant alleging that he had committed embezzlement and forgery.

The ODC opened an investigation into these allegations. The ODC learned that respondent had committed the alleged crimes while employed as an accountant with Premier Craneworks ("Premier") in Pascagoula. Upon reviewing his bank statement, the president of Premier noticed that two checks - one in the amount of $ 1,955.83 and another in the amount of $ 1,956.38 - had been written on the company's account but were issued out of sequence. An investigation by law enforcement established that respondent, without permission, consent, or authority, had taken the checks and made them payable to his girlfriend, who then cashed them. After the stolen checks were discovered, respondent left his employer's office and fled the jurisdiction of Mississippi. Law enforcement described respondent as a fugitive from justice. Respondent was recently apprehended on an open warrant while in Florida and has been extradited to Mississippi.

DISCIPLINARY PROCEEDINGS

In March 2018, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration.

Hearing Committee Report

After considering the ODC's deemed admitted submission, the hearing committee made factual findings consistent with the deemed admitted factual allegations set forth in the formal charges. The committee added that when the president of Premier confronted respondent about the checks, respondent denied knowing anything about them. Based on these facts, the committee determined respondent violated Rules 8.4(b) and 8.4(c) of the Rules of Professional Conduct.

The committee determined that respondent violated duties owed to the public and the legal profession. His actions in committing these crimes were, by definition, intentional. Respondent stole approximately $ 4,000 from his employer. He also caused law enforcement to expend valuable time, resources, and effort to locate and extradite him. His criminal acts reflect adversely on the legal profession's image in the eyes of the public and the consumers of legal services. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is disbarment.

The committee found the following aggravating factors are supported by the record: a prior disciplinary record, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victim, substantial experience in the practice of law, indifference to making restitution, and illegal conduct. The committee found no mitigating factors present.

After further considering respondent's conduct in light of the permanent disbarment guidelines, the committee recommended respondent be permanently disbarred. The committee further recommended he be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the hearing committee's report.

Disciplinary Board Recommendation

After review, the disciplinary board acknowledged that the factual allegations of the formal charges have been deemed admitted and proven. The board also determined that the legal conclusions of the hearing committee are supported by the factual allegations asserted in the formal charges and by the evidence submitted in support of the allegations. Based on these findings, the board concluded that respondent violated the Rules of Professional Conduct as charged.

The board determined that respondent violated duties owed to the public and the legal profession. His actions in committing the criminal acts were intentional. By his theft, respondent caused harm to his employer. The board agreed with the committee that the baseline sanction is disbarment.

The board adopted the aggravating factors found by the hearing committee but declined to recognize the factor of substantial experience in the practice of law, noting that respondent had only been practicing for six years when he was suspended in 2008. The board agreed that the record supports no mitigating factors.

After further considering respondent's conduct in light of the permanent disbarment guidelines, the board recommended that respondent be permanently disbarred. The board further recommended that he be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan , 01-3058 (La. 1/10/03), 838 So.2d 715.

The record in this deemed admitted matter supports a finding that respondent stole approximately $ 4,000 from his employer. This misconduct is a clear violation of the Rules of Professional Conduct as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

By its very nature, respondent's criminal conduct was intentional. In acting as he did, respondent violated duties owed to the public and the legal profession, causing actual harm. Considering the ABA's Standards for Imposing Lawyer Sanctions , the baseline sanction in this matter is disbarment.

The record supports the aggravating factors found by the disciplinary board. There are no mitigating factors supported by the record.

In their respective reports, the hearing committee and the disciplinary board have concluded respondent's offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar. We agree. In Appendix E to Supreme Court Rule XIX, the court set forth guidelines illustrating the types of conduct that might warrant permanent disbarment. While these guidelines are not intended to bind the court in its decision-making process, they present useful information concerning the types of conduct that may be worthy of permanent disbarment. For purposes of the instant case, Guideline 9 is relevant. That guideline details the following conduct:

GUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

This case falls squarely within the requirements of Guideline 9. Standing alone, respondent's current misconduct, which is criminal in nature, constitutes serious attorney misconduct and warrants disbarment. This misconduct was preceded by LeBlanc I , wherein respondent received a three-year suspension for serious attorney misconduct.

Accordingly, we will accept the board's recommendation and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Michael Keith LeBlanc, Louisiana Bar Roll number 27834, be and he hereby is permanently disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

Genovese, J., would impose disbarment.


text:
    STATE of Louisiana v. Antywane Eric WILLIAMS
    No. 2018-KH-0447
    Supreme Court of Louisiana.
    April 8, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF BOSSIER
   PER CURIAM:

Denied. Applicant shows no lower court error.

Applicant has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Henry WEBER
    No. 2018-KH-0802
    Supreme Court of Louisiana.
    April 8, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application was not timely filed in the district court, and applicant fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; see State ex rel. Glover v. State , 93-2330, pp. 9-11 (La. 9/5/95), 660 So.2d 1189, 1195-96 (distinguishing habeas corpus from post-conviction relief and endorsing La.C.Cr.P. art. 351 and its cmt. (c), which states that "habeas corpus is not the proper procedural device for petitioners who may file applications for post conviction relief;" rather, it "deals with pre-conviction complaints concerning custody.").

Applicant has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Terrol COLE
    No. 2018-KH-0816
    Supreme Court of Louisiana.
    April 8, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Applicant fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, applicant fails to carry his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Applicant has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Bradley B. PARVEZ
    No. 2018-K-1240
    Supreme Court of Louisiana.
    April 8, 2019
    ON WRIT OF CERTIORARI TO THE FOURTH CIRCUIT COURT OF APPEAL, PARISH OF ORLEANS
   PER CURIAM:

Writ granted in part. Defendant was found guilty of manslaughter in response to a charge of second degree murder. The district court sentenced him to serve 25 years imprisonment at hard labor. The district court ordered that the first 20 years of the sentence be served without parole eligibility pursuant to La.C.Cr.P. art. 893.3(E). The State did not object to or seek review of the sentence. The court of appeal, however, found as an error patent that the sentence was illegally lenient because it did not restrict parole eligibility for the entire 25-year term of imprisonment. Therefore, the court of appeal affirmed the conviction but remanded for resentencing. State v. Parvez , 17-0809 (La. App. 4 Cir. 6/20/18), 249 So.3d 102. The court of appeal erred in its sua sponte determination that the sentence is illegally lenient.

Code of Criminal Procedure art. 893.3 provides for mandatory minimum sentences for felonies and specifically enumerated felonies when an offender possesses a firearm (Paragraph A), uses a firearm (Paragraph B), discharges a firearm (Paragraph C), or uses or discharges a firearm and causes bodily injury (Paragraph D) during the commission of the crime. The article also provides mandatory minimum sentences for specifically enumerated violent felonies when an offender commits the violent felony with a firearm or discharges a firearm during the commission of the violent felony (Paragraph E). In each of these instances, however, La.C.Cr.P. art. 893.3 merely provides for mandatory minimum sentences. See State v. Lee , 02-1793, pp. 47-49 (La. App. 4 Cir. 4/2/03), 844 So.2d 970, 999-1000, writ denied , 03-1247 (La. 10/10/03), 855 So.2d 330. In doing so, the article is written so that the mandatory minimum sentences provided therein do not exceed the maximum sentences for the offenses a defendant is convicted of beyond a reasonable doubt, in an effort to remain within constitutional parameters. See generally Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Paragraph E(2) provides that a sentence imposed under Paragraph E shall be imposed without parole eligibility. The sentence referenced in that provision is, in its context, the mandatory minimum sentence , and must necessarily be so if the provision is to avoid conflicting with Apprendi . Thus, the sentence imposed by the district court here of 25 years imprisonment at hard labor without parole eligibility for the first 20 years fully comports with La.C.Cr.P. art. 893.3. Therefore, we reverse the court of appeal to the extent it found this sentence is illegally lenient and it remanded for resentencing.

REVERSED IN PART

Hughes, J., would grant and docket.


text:
    STATE of Louisiana v. Rip Dan DAVIS
    No. 2018-KH-1040
    Supreme Court of Louisiana.
    April 8, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
   PER CURIAM:

Denied. Applicant does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. The application was not timely filed in the district court, and applicant fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Applicant has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    LEBLANC MARINE, L.L.C. v. State of Louisiana, DIVISION OF ADMINISTRATION, OFFICE OF FACILITY PLANNING AND CONTROL
    NO. 2019-C-0053
    Supreme Court of Louisiana.
    March 18, 2019
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit- "It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.


text:
    Justo E. ROQUE, Jr. v. Douglas CROSS, D.D.S
    NO. 2018-C-1254
    Supreme Court of Louisiana.
    March 18, 2019
    Not considered. See Louisiana Supreme Court Rule DC, § 6. No further filings shall be accepted in this matter.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Charles WILLIAMS
    NO. 2018-K-0584
    Supreme Court of Louisiana.
    \March 18, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Doc WARREN
    NO. 2018-KH-0426
    Supreme Court of Louisiana.
    March 18, 2019
    Denied. Moot.


text:
    STATE of Louisiana v. Doc WARREN
    NO. 2018-KH-0590
    Supreme Court of Louisiana.
    Supreme Court of Louisiana March 18, 2019
    Denied.


text:
    STATE of Louisiana v. Cliff MALBROUGH
    NO. 2018-KH-0358
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    Kyonne WALKER and Curtis Walker, Jr. v. ARCH INSURANCE COMPANY, Allstate Property and Casualty Insurance Company, Mid-Western Car Carriers, Inc., Timothy D. Martin and Dionne Walker
    NO. 2019-CC-0104
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    STATE of Louisiana v. Samuel J. BARKER, Jr.
    NO. 2018-KO-0968
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


author: JOHNSON, C.J., would grant.

text:
    STATE of Louisiana v. Shane BADEAUX
    NO. 2018-KO-1066
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.
   JOHNSON, C.J., would grant.


text:
    STATE of Louisiana v. Robert L. WHITE
    NO. 2018-KH-1072
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    STATE EX REL. Marvin G. DEAL v. STATE of Louisiana
    NO. 2017-KH-1850
    Supreme Court of Louisiana.
    March 18, 2019
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    STATE of Louisiana v. Randy FINCH
    NO. 2017-KP-1898
    Supreme Court of Louisiana.
    March 18, 2019
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    STATE of Louisiana v. Steven CAMPBELL
    No. 2018-KH-0075
    Supreme Court of Louisiana.
    March 18, 2019
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    Steven CAMPBELL v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-CI-0359
    Supreme Court of Louisiana.
    March 18, 2019
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    IN RE: Medical Malpractice Review Panel Proceedings of Tiffany ANDERSON
    NO. 2018-C-2041
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    SAVE OUR HILLS, Louisiana Environmental Action Network, and O'Neil Couvillion v. LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY
    NO. 2019-C-0057
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    Sotirios PATATOUKOUS and Katerina Zagoreos v. H & E EQUIPMENT SERVICES, INC. and Genie Industries, Inc.
    NO. 2019-CC-0102
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    T M F HOTEL PROPERTIES, L.L.C. v. CRESCENT CITY CONNECTIONS 501(C) 7 GRIS-GRIS PLEASURE AIDE & SOCIAL CLUB
    NO. 2019-C-0110
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    Marcia HENRY v. Troy HENRY
    NO. 2019-C-0134
    Supreme Court of Louisiana.
    March 18, 2019
    Not Considered, not timely filed. See La. S.Ct. Rule X, § 5 (a).


text:
    EMBRACE HOME LOANS, INC. v. Linia Thomas BURL a/k/a Linia T. Burl a/k/a Linia Burl
    NO. 2018-OC-1876
    Supreme Court of Louisiana.
    March 18, 2019
    Reconsideration denied.


text:
    Frederick EVERETT v. INTORBUS OF NEW ORLEANS, LLC and Japerlet Wilson
    Kevin Everett v. Intorbus of New Orleans, LLC and Occidental Insurance Company
    Sequin Brimmer v. Intorbus of New Orleans, LLC; Japerlet Wilson; and IAT Specialty Acceptance Insurance Company
    NO. 2019-C-0123
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    STATE of Louisiana IN the INTEREST OF H.J.
    NO. 2018-CK-0312
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    IN RE: Medical Malpractice Review Panel Proceedings of Tiffany ANDERSON
    NO. 2018-C-2017
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    ALPHA CAPITAL US BANK d/b/a Alpha Capital v. Zenobia A. WHITE
    NO. 2019-C-0135
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    Jana Marie Lindner MCCAFFERY v. Joe Ann Young LINDNER
    NO. 2019-C-0140
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    Gail WALLACE v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
    NO. 2019-C-0136
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    Dale Anthony HUNTER v. Michael D. TERREBONE and ANPAC Louisiana Insurance Company
    NO. 2019-C-0144
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    Jose Maria RIVERA ROSALES v. MICHELIN NORTH AMERICA, INC., et al.
    NO. 2019-C-0145
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    Thomas HANDY, Jr., Sandra Handy and Thomas Handy, III v. OWENS CORNING CORPORATION, et al.
    NO. 2019-C-0153
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    STATE of Louisiana v. Cliff MALBROUGH
    NO. 2018-KP-1924
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


author: WEIMER, J., would grant.

text:
    Shakti BELWAY v. Gregory Neal THYSSEN
    Shakti Belway v. Gregory Neal Thyssen
    NO. 2019-CJ-0275
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.
   WEIMER, J., would grant.


author: GUIDRY, J., recused.

text:
    FIRST BANK AND TRUST v. Warren G. TREME
    NO. 2019-C-0099
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.
   GUIDRY, J., recused.


text:
    Norman BONCK v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Linda M. Crockem
    NO. 2019-C-0148
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.
   GUIDRY, J., recused.


text:
    Amanda Granier STEIB, Dwane J. Steib, Donavon J. Steib, and Israel J. Steib v. LAMORAK INSURANCE COMPANY, et al.
    NO. 2019-CC-0159
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    Nancy WILLIAMS, Wife of/and Franco Valobra v. Robert Allan NELSON and Jerome Garfield Smith, III as Co-Trustees of the Allan R. & Louise S. Nelson Revocable Trust & the Allan R. Nelson Marital Trust (Trusts)
    NO. 2019-CC-0092
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    KEEPING OUR LEGACY ALIVE, INC. v. CENTRAL ST. MATTHEW UNITED CHURCH OF CHRIST
    NO. 2019-C-0130
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Jimmell PINES
    NO. 2019-KK-0155
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Leroyal DUNBAR
    NO. 2019-KK-0156
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    Byron V. WILLIAMS, Jr. v. Lee ZURIK, Louisiana Media Company, LLC, WVUE, LLC of Delaware, Raycom Media, Inc. and Edward Theriot
    NO. 2019-CC-0083
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    Lemarr PIERITE v. DG LOUISIANA, LLC
    NO. 2019-C-0127
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Robert. L. WHITE
    NO. 2019-KH-0089
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.
   WEIMER, J., recused.


text:
    ALFRED CONHAGEN, INC. OF LOUISIANA v. RUHRPUMPEN, INC. and Waldemar S. Nelson and Company, Inc.
    Alfred Conhagen, Inc. of Louisiana v. Ruhrpumpen, Inc. and Waldemar S. Nelson and Company, Inc.
    NO. 2019-C-0126
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    CARR STONE, INC. v. Masha SHAD, Wife of/and Darius Shad and Ron Vaccaro Construction Company, Inc.
    NO. 2019-C-0131
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


author: GENOVESE, J., would grant.

text:
    Daniell SAVOY Individually and as Natural Tutrix of the Minor Child Nicholas Glenn v. PHI BETA SIGMA FRATERNITY, INC. and Marcellus White
    D.S. v. Marcellus White, National Sigma Beta Club Foundation and Phi Beta Sigma Fraternity, Inc.
    NO. 2018-CC-1777
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.
   GENOVESE, J., would grant.


text:
    Marko and Erica Jill BACA, et al. v. SABINE RIVER AUTHORITY, State of Louisiana
    NO. 2019-C-0149
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.


text:
    Neil S. KAVANAGH v. Roe Eugene HEBRON
    NO. 2019-C-0219
    Supreme Court of Louisiana.
    March 18, 2019
    Denied.
   HUGHES, J., would grant.


author: THERIOT, J. GUIDRY, J., dissenting.

text:
    GLOBAL MARKETING SOLUTIONS, L.L.C. v. BLUE MILL FARMS, INC., et al
    NO. 2018 CA 0093
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 6, 2018
    Richard J. Ward, Jr., Maringouin, Louisiana, Martin K. Maley, Sr., Baton Rouge, Louisiana, Donald T. Carmouche, Victor L. Marcello, John H. Carmouche, William R. Coenen, III, Brian T. Carmouche, Todd J. Wimberley, Ross J. Donnes, D. Adele Owen, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, Global Marketing Solutions, L.L.C.
    David M. Culpepper, New Orleans, Louisiana, Counsel for Defendant/Appellee, Key Production Company, Inc.
    Michael R. Phillips, Claire E. Juneau, Jeffrey J. Gelpi, New Orleans, Louisiana, L. Victor Gregoire, Richard D. McConnell, Jr., Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Chevron U.S.A., Inc.
    Joe B. Norman, Kelly Brechtel Becker, James E. Lapeze, Kathryn Zainey Gonski, New Orleans, Louisiana, Counsel for Defendant/Appellee, Exxon Mobil Corporation
    BEFORE: WHIPPLE, GUIDRY, THERIOT, HOLDRIDGE, AND PENZATO, JJ.
   THERIOT, J.

Global Marketing Solutions, L.L.C. appeals the judgment of the Eighteenth Judicial District Court sustaining the exceptions of no cause of action filed by Chevron U.S.A. Inc., Exxon Mobil Corporation, Key Production Company, Inc., and Seal Energy Company, Inc. For the following reasons, we reverse the trial court's judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

By act of cash sale recorded in the conveyance records of the Parish of West Baton Rouge on September 12, 2005, Global Marketing Solutions, L.L.C. ("Global") purchased 144 acres of land located in the Bayou Choctaw Oil and Gas Field from Water Oak Plantation, L.L.C. Global alleges that after purchasing the land, it discovered that the land was contaminated by various forms of toxic waste that had seeped through the soil from drilling operations that had been conducted since 1937 to the present time.

At no time did Global possess mineral rights to the land. The mineral rights had been severed years prior by various mineral leases beginning in the 1930s. Through investigation and discovery, Global learned that the defendants were mineral lessees at various points in the land's history and had conducted drilling operations.

On March 14, 2006, Global filed suit against several defendants, including Chevron U.S.A., Inc. ("Chevron"), Exxon Mobil Corporation ("Exxon"), Key Production Company, Inc. ("Key"), and Seal Energy Company ("Seal"), asserting contract and tort claims. According to Global, the various defendants were responsible for the contamination of the property at issue. The trial court ultimately dismissed the claims against the defendants pursuant to the Supreme Court of Louisiana's holding in Eagle Pipe and Supply, Inc. v. Amerada Hess Corporation, 2010-2267 (La. 10/25/11), 79 So.3d 246. On September 19, 2014, this court affirmed the dismissal. See Global Marketing Solutions, LLC v. Blue Mill Farms, Inc., 2013-2132 (La. App. 1 Cir. 9/9/14), 153 So.3d 1209, writ denied, 2014-2572 (La. App. 1 Cir. 4/23/15), 173 So.3d 1164.

On November 16, 2015, Global filed a fifth supplemental and amending petition seeking damages from Chevron, Exxon, Key, Seal, and other defendants. In the fifth supplemental and amending petition, Global sought a mandatory and prohibitive injunction ordering the various defendants in the supplemental petition to remediate the contamination on Global's property caused by oil and gas exploration and production activities to a level that complies with applicable regulations and orders, including Statewide Order 29-B, and restraining defendants in the supplemental petition from further violating, or threatening to violate, applicable regulations and orders, including Statewide Order 29-B.

The fifth supplemental and amending petition referenced two letters sent by Global to the Commissioner of Conservation ("the Commissioner"). The first letter, dated September 23, 2015, informed the Commissioner that Global owns contaminated property and deemed the letter to be formal notice of regulatory violations under La. R.S. 30:14. This letter also stated that if the Commissioner did not take action within ten days, Global would sue the responsible parties for injunctive and other appropriate relief. On October 14, 2015, Global sent a second letter to the Commissioner, which referred to the September 23, 2015 letter and reiterated Global's request that the Commissioner file suit under La. R.S. 30:14 or that Global would do so under La. R.S. 30:16.

On November 6, 2015, the Commissioner sent a compliance order to Chevron seeking a work plan for assessing soil and groundwater conditions at the site at issue. The compliance order noted that there are constituents of concern present in the soil and/or groundwater of the property in question which indicates potential impact from historical oil and gas exploration and production activities in excess of regulatory allowances. As a result, the Commissioner ordered Chevron to submit a plan for assessing soil and groundwater conditions at the subject site by January 6, 2016. Chevron and Exxon allege that Chevron timely responded to that order by submitting a work plan, and that the Office of Conservation approved that work plan. However, in its fifth supplemental and amending petition (filed November 16, 2015), Global claimed that the Commissioner had failed to act on those letters, thus giving Global the right to seek relief set forth in La. R.S. 30:14 and 30:16.

In March 2016 and April 2016, Key, Exxon, Chevron, and Seal filed various exceptions of prescription and res judicata seeking to have Global's claims against them dismissed. On June 1, 2016, the trial court denied their exceptions, but dismissed several other defendants on exceptions of no cause of action. In May 2017, Chevron, Exxon, Key, and Seal filed multiple declinatory and peremptory exceptions, including an exception of no cause of action. In their exceptions of no cause of action, the defendants alleged that Global had no cause of action under La. R.S. 30:16 to prevent wholly past violations.

The trial court heard arguments on the May 2017 exceptions on July 26, 2017. On July 31, 2017, the trial court rendered a final partial judgment which granted the exceptions of no cause of action filed by Chevron, Exxon, Key, and Seal. The judgment also declared that the other pending exceptions filed by Chevron, Exxon, Key, and Seal were moot. Additionally, the judgment was designated as a final judgment as to Chevron, Exxon, Key, and Seal pursuant to La. Code Civ. P. arts. 1911 and 1915(A)(1). Global subsequently moved for a new trial, which was denied. Global now appeals the July 31, 2017 judgment and the judgment denying Global's motion for new trial.

ASSIGNMENTS OF ERROR

Global assigns the following as error:

(1) The trial court committed error in finding that Global had no cause of action under La. R.S. 30:16.
(2) The trial court committed error in finding that La. R.S. 30:16 applies only to alleged continuing or present violations of oil and gas statutes and the commissioner's oil and gas regulations.
(3) The trial court committed error in refusing to follow the Supreme Court's rulings in the Marin [v. Exxon Mobile [Mobil] Corp., 2009-2368 (La. 10/19/10), 48 So.3d 234 ] and Eagle Pipe cases.

STANDARD OF REVIEW

The function of an exception raising the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993). No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action, and all well-pleaded allegations of fact are accepted by the court as true. Copeland v. Treasure Chest Casino, L.L.C., 2001-1122 (La. App. 1 Cir. 6/21/02), 822 So.2d 68, 70. See also La. Code Civ. P. art. 931. Thus, the only issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Copeland, 822 So.2d at 70.

In reviewing a trial court's ruling sustaining an exception raising the objection of no cause of action, the appellate court should subject the case to a de novo review. Id. The exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition. Fink v. Bryant, 2001-0987 (La. 11/28/01), 801 So.2d 346, 349. When a petition states a cause of action as to any ground or portion of the demand, an exception raising the objection of no cause of action must be overruled. Copeland, 822 So.2d at 70. Thus, if the petition sets forth a cause of action, none of the other causes of action may be dismissed based on an exception pleading the objection of no cause of action. Id. Further, any doubts are resolved in favor of the sufficiency of the petition. Id. The question, therefore, is whether, in the light most favorable to plaintiff, and with every doubt resolved in his behalf, the petition states any valid cause of action for relief. Id.

DISCUSSION

Assignment of Error # 1

In its first assignment of error, Global argues that the trial court erred in finding that Global failed to bring a cause of action under La. R.S. 30:14 and 30:16. Louisiana Revised Statutes 30:14 states:

Whenever it appears that a person is violating or is threatening to violate a law of this state with respect to the conservation of oil or gas, or both, or a provision of this Chapter, or a rule, regulation, or order made thereunder, the commissioner shall bring suit to restrain that person from continuing the violation or from carrying out the threat.
Venue shall be in the district court in the parish of the residence of any one of the defendants or in the parish where the violation is alleged to have occurred or is threatened.
In this suit, the commissioner may obtain injunctions, prohibitory and mandatory, including temporary restraining orders and preliminary injunctions, as the facts warrant, including, when appropriate, injunctions restraining a person from moving or disposing of illegal oil, illegal gas, or an illegal product. Any or all of these illegal commodities may, in the court's discretion, be ordered impounded or placed under the control of an agent appointed by the court.

Louisiana Revised Statutes 30:16 provides:

If the commissioner fails to bring suit within ten days to restrain a violation as provided in La. R.S. 30:14, any person in interest adversely affected by the violation who has notified the commissioner in writing of the violation or threat thereof and has requested the commissioner to sue, may bring suit to prevent any or further violations, in the district court of any parish in which the commissioner could have brought suit. If the court holds that injunctive relief should be granted, the commissioner shall be made a party and shall be substituted for the person who brought the suit and the injunction shall be issued as if the commissioner had at all times been the complaining party.

As previously stated, the function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc., 616 So.2d at 1235. The only issue is whether, on the face of the petition, Global is legally entitled to the relief sought. See Copeland, 822 So.2d at 70.

In its fifth supplemental and amending petition, Global alleged that its property had been contaminated by various defendants' oil and gas activities. As a result, Global sought a mandatory and prohibitive injunction against several defendants, including Chevron, Exxon, Key, and Seal, ordering the defendants to remediate the contamination.

Louisiana Revised Statutes 30:14 states that the Commissioner shall bring suit to restrain a person violating "a law of this state with respect to the conservation of oil or gas, or both, or a provision of this Chapter, or a rule, regulation, or order made thereunder[.]" Louisiana Revised Statutes 30:14 further states that "the commissioner may obtain injunctions, prohibitory and mandatory, including temporary restraining orders and preliminary injunctions, as the facts warrant[.]" Louisiana Revised Statutes 30:16 allows the Commissioner ten days to bring suit to restrain a violation as provided in La. R.S. 30:14. If the Commissioner fails to bring suit within ten days, any adversely affected person in interest may bring suit to prevent violations.

Pursuant to La. R.S. 30:14 and 30:16, Global sent letters to the Commissioner on September 23, 2015 and October 14, 2015 notifying the Commissioner that Global's property was contaminated and requesting that the Commissioner file suit under La. R.S. 30:16. Although the Commissioner eventually sent a compliance order on November 6, 2015, the Commissioner did not bring the requested suit within ten days of either of Global's written requests. Accordingly, Global has authority under La. R.S. 30:16 to file a suit that the commissioner refused to file.

Considering Global's allegations, the injunctive relief sought falls under La. R.S. 30:14 and 30:16. Global's fifth supplemental and amending petition alleges that "the parties made defendants in this supplemental petition are violating Statewide Order 29-B and other regulations and orders of the [Louisiana Department of Natural Resources] and office of the commissioner of conservation by failing to remediate the property to the standards set forth [in] Statewide Order 29-B and other applicable regulations and orders." (Emphasis added.) According to the fifth supplemental and amending petition, the violations at issue - namely, the failure to remediate the property - are still ongoing. Because Global specifically seeks relief under La. R.S. 30:14 and because the Commissioner failed to bring suit within ten days of the September 23, 2015 letter, Global has a cause of action under La. R.S. 30:16 to bring suit seeking the aforementioned injunctions against the various defendants. Therefore, this assignment of error has merit. We reverse the trial court's judgment sustaining the defendants' exceptions of no cause of action and remand this case for further proceedings.

Assignments of Error # 2 and # 3

Because we find that Global has a cause of action under La. R.S. 30:14 and 30:16, we pretermit discussion of Global's second and third assignments of error. See Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La. 3/17/06), 929 So.2d 1211, 1217 ("If the petition states a cause of action on any ground or portion of the demand, the exception [of no cause of action] should generally be overruled").

DECREE

For the above and foregoing reasons, we reverse the judgment of the Eighteenth Judicial District Court sustaining the exceptions of no cause of action filed by Chevron U.S.A. Inc., Exxon Mobil Corporation, Key Production Company, Inc., and Seal Energy Company. We remand this case for further proceedings. Costs of this appeal are assessed to Appellees, Chevron U.S.A. Inc., Exxon Mobil Corporation, Key Production Company, Inc., and Seal Energy Company.

REVERSED AND REMANDED.

Guidry, J. Dissents and assigns reasons.

Holdridge J. concurs with reasons

GUIDRY, J., dissenting.

I respectfully disagree with the opinion reached by the majority. Global's pleadings read as a whole clearly seek to remedy past violations. As such, they do not state a cause of action under the provisions of La R.S. 30:16. The plain language of La. R.S. 30:16 authorizes suit to "prevent" any (present day) or further (future) violations. Based on the facts as alleged in the pleadings, the law does not afford the plaintiffs a remedy.

HOLDRIDGE, J., CONCURS.

I respectfully concur in the result. While it appears that La. R.S. 30:14 and La. R.S. 30:16 provide only for a prohibitory injunction restraining a person from continuing a violation or from carrying out a threat in violation of the law, La. R.S. 30:16 also provides that the commissioner may obtain a mandatory injunction. Because the statutes seem to be in contradiction, I concur in reversing the granting of the exception raising the objection of no cause of action. There are other procedural actions available to the parties to more completely address this apparent inconsistency.

      In Eagle Pipe and Supply, Inc. v. Amerada Hess Corporation, the Supreme Court of Louisiana held that a subsequent purchaser of property does not have a right to sue a third party for non-apparent property damages inflicted before the sale of property in the absence of the assignment of or subrogation to that right. 79 So.3d at 252. Instead, the subsequent purchaser has the right to seek rescission of the sale, reduction of the purchase price, or other legal remedies. Id.

      Global amended its petition four times in the previous suit. Each of these four amendments included a clause renewing and reiterating all of the allegations (as amended in each amendment) and the prayer of the original petition for damages.

      Global's fifth supplemental and amending petition does not refer to the compliance order itself, which was sent ten days prior to the filing of the petition.

      Chevron filed the exceptions; Key, Exxon, and Seal adopted Chevron's exceptions.

      Louisiana Code of Civil Procedure article 1915(A)(1) states:
      A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
      (1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.


author: GUIDRY, J.

text:
    MARLBOROUGH OIL & GAS, L.L.C. v. BAKER HUGHES OIL FIELD OPERATIONS, INC. and T.F. Services, L.L.C.
    NUMBER 2018 CA 0557
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 14, 2018
    Wade P. Webster, New Orleans, LA, Counsel for Plaintiff/Appellee Marlborough Oil & Gas, LLC
    Stewart F. Peck, New Orleans, Counsel for Defendant/Appellant Baker Hughes, a GE Company f/k/a Baker Hughes Oilfield Operations, Inc.
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   GUIDRY, J.

A contractor that provided equipment and supplies to a lessee for work on a well that was ultimately found to be a dry hole, appeals a declaratory judgment finding that an oil well lien perfected by the contractor is "of no legal effect" as to a mineral servitude holder and a second well located in the same field as the well for which the services, equipment, and supplies supporting the lien were provided. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

Through a series of transactions, Marlborough Oil & Gas, LLC acquired ownership of a mineral servitude, and pursuant to its ownership, it executed an oil and gas lease on July 8, 2010, of the following described property (hereinafter referred to as the "leased property"):

Commence at a point which is common to the southwest corner of Section 28, and the southeast corner of Section 29, Township 8 South, Range 11 East, thence run east along the south line of Section 28 to a point on the line which separates the east half from the west half of said Section 28; thence in a northerly direction along said line to a point sufficiently distant from the south line of said Section 28 so that a line drawn from such point parallel to the south line of Section 28 and extending westerly to the boundary line between the Parishes of West Baton Rouge and Iberville, and along such parish line back to the point of beginning, which will embrace two hundred (200) acres; being the same property included in a lease from the Morley Cypress Company, to the Gulf Refining Company of record in Book 22, folio 364 of the Conveyance records of the Parish of West Baton Rouge.

Included within the parameters of the leased property are two wells, the Marlborough Oil & Gas, LLC No. 1 and the Marlborough Oil & Gas, LLC No. 3.

Baker Hughes Oilfield Operations, Inc., a company that furnishes labor, equipment, machinery, materials, and related services in support of the development, exploration, maintenance, and operation, provided goods, equipment, supplies, materials, and related services to Northwind Oil & Gas, Inc., from September 17, 2012 to October 8, 2012, in connection with Northwind's operations on the Marlborough Oil & Gas, LLC No. 3 well. Northwind, however, failed to pay the $412,415.64 owed for the goods and services provided by Baker Hughes. As a consequence, on March 14, 2013, Baker Hughes recorded an "Oil Well Lien Affidavit, Notice of Claim of Lien and Statement of Privilege," in the mortgage records of West Baton Rouge Parish, wherein it described Marlborough Oil & Gas, LLC No. 3 well and claimed a privilege for the $412,415.64 owed, plus interest, attorney fees, and costs, pursuant to the Louisiana Oil Well Lien Act (LOWLA), La. R.S. 9:4861 -4873. Baker Hughes also filed suit against Northwind and recorded a notice of lis pendens regarding the suit in the mortgage records of West Baton Rouge Parish on April 10, 2013. Finally, Baker Hughes secured a summary judgment against Northwind on November 14, 2013, wherein Baker Hughes was awarded the sum of $412,415.54, plus interest, costs, and attorney fees. The judgment further "recognized and foreclosed" Baker Hughes' lien and privilege in the amount of $412,415.54 against the Marlborough Oil & Gas, LLC No. 3 well "as provided in" the LOWLA.

On March 20, 2017, Marlborough filed a petition for declaratory judgment against Baker Hughes, seeking to have the court declare that the March 14, 2013 oil well lien and the November 14, 2013 summary judgment obtained by Baker Hughes did not affect or encumber Marlborough's mineral servitude or any "tubing, casing, equipment, pipelines, or other constructions" situated on the leased property. In response to the petition, Baker Hughes denied Marlborough's allegations that the lien and judgment should be deemed ineffective in any respect. Thereafter, Marlborough filed a pleading titled "Motion for Summary Judgment, or Alternatively for Partial Summary Judgment."

In its memorandum in support of its motion, Marlborough prayed that (1) Baker Hughes' oil well lien against the Marlborough Oil & Gas, LLC No. 3 well be declared invalid as to the Marlborough Oil & Gas, LLC No. 1 well; and (2) Baker Hughes' oil well lien be declared "wholly ineffective" as to Marlborough, its successors, assigns and lessees, because it did not receive a Mennonite notice of Baker Hughes' suit to confirm its oil well lien. In a reply memorandum in further support of its motion, Marlborough alternatively prayed for partial summary judgment declaring that the Baker Hughes' oil well lien did not attach to the casing and tubing that is "downhole" in the Marlborough Oil & Gas, LLC No. 1 well, as such items should be considered component parts of the land because they cannot be easily removed.

Following a hearing on Marlborough's motion for summary judgment, and alternative motion for partial summary judgment, the trial court signed a judgment on August 29, 2017, in favor of Marlborough, declaring Baker Hughes' oil well lien, the notice of lis pendens, and the November 14, 2013 summary judgment in favor of Baker Hughes "of no legal effect or consequence, insofar and only insofar as to (1) [Marlborough], its successors, lessees and assigns and (2) the mineral servitude owned by [Marlborough]" affecting the leased property as described in the judgment. The judgment further declared Baker Hughes' oil well lien, the notice of lis pendens, and the November 14, 2013 summary judgment in favor of Baker Hughes "of no legal effect or consequence insofar and only insofar as the Marlborough No. 1 Well." Following the denial of its motion for new trial, Baker Hughes was granted a devolutive appeal of the August 29, 2017 judgment.

ASSIGNMENTS OF ERROR

On appeal, Baker Hughes assigns the following as error committed by the trial court:

I. The [trial court] erred in granting summary judgment when the opposing summary judgment evidence established that the description provided in the Oil Well Lien satisfies LOWLA;
II. The [trial court] erred in granting summary judgment on the issue of proper description under LOWLA;
III. The [trial court] erred in granting summary judgment on the issue of Mennonite notice;
IV. The [trial court] erred in rendering a decision on summary judgment that was based in large part upon an improperly brought constitutional challenge on LOWLA notice, including failure to properly raise the issue and failure to notify the Attorney General and provide that office an opportunity to be heard.

DISCUSSION

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Bice v. Home DepotU.S.A., Inc., 16-0447, p. 3 (La. App. 1st Cir. 12/22/16), 210 So.3d 315, 318. A motion for summary judgment is properly 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).

In its first two assignments of error, Baker Hughes contends that the trial court erred in granting summary judgment when the record shows that it fully complied with the LOWLA in securing the lien and judgment at issue. We agree. The record shows that Baker Hughes timely filed (within 180 days of October 8, 2012, the date of the last activity giving rise to the privilege) a statement of privilege in accordance with La. R.S. 9:4865(A) and 4868 in the mortgage records of West Baton Rouge Parish on March 14, 2013, and timely filed (within one year of the filing of the statement of privilege) an action against Northwind for the debt owed and for judicial recognition of its privilege in accordance with La. R.S. 9:4865(B) on April 10, 2013. And while the trial court found Baker Hughes' description in the statement of privilege to be deficient, this finding is clearly contrary to the LOWLA.

Louisiana Revised Statutes 9:4868(A)(5) specifies that the statement of privilege must contain "[a] description of the operating interest[ ] upon which the privilege is claimed, or of the well with respect to which the operations giving rise to the claimant's privilege were performed. " (Emphasis added.) Although Marlborough cites several cases that provide more detailed property descriptions than just naming the well with respect the operations giving rise to the privilege, all of the cited cases pre-date the legislature's amendment and re-enactment of the LOWLA in 1995. See 1995 La. Acts, No. 962, § 1 (which added the provisions of La. R S. 9:4868 cited above). Moreover, La. R.S. 9:4868(E) expressly states that "[a] statement of privilege is not invalid if it fails to contain all of the information required by Subsection A of this Section, but fairly apprises the recipient or person against whom the privilege is asserted of the privilege claimed and of the operating interest, hydrocarbons, or other property upon which the privilege is claimed." Paragraph (B)(1) of La. R.S. 9:4868 states "[a] well is adequately identified if the statement of privilege gives the name and serial or other identification number of the well and the name of the field where it is located as these are designated by the records of the commissioner of conservation." Hence, Baker Hughes's identification of the "Marlborough Oil & Gas # 3 Well, Serial # 245148, API # 17121202230000, Bayou Choctaw Field, West Baton Rouge Parish, State of Louisiana" fully complied with the statutory requirements for preservation of its privilege.

Additionally, it has been uniformly held that the privilege granted is not restricted to the proceeds of the well actually drilled, but rather exists on the entire lease as a whole. Guichard Drilling Company v. Alpine Energy Services, Inc., 94-1275, pp. 5-6 (La. 7/3/95), 657 So.2d 1307, 1312. Consistent with this holding, La. R.S. 9:4863(A)(1) states that the privilege provided for in La. R.S. 9:4862 is established over:

The operating interest under which the operations giving rise to the claimant's privilege are conducted together with the interest of the lessee of such interest in a:
(a) Well, building, tank, leasehold pipeline, and other construction or facility on the well site.
(b) Movable on a well site that is used in operations, other than a movable that is only transiently on the well site for repair, testing, or other temporary use.
(c) Tract of land, servitude, and lease described in R.S. 9:4861(12)(c) covering the well site of the operating interest.

Thus, no authority exists, as a matter of law, for the trial court's decree holding Baker Hughes' lien and judgment only effective as to the Marlborough Oil & Gas, LLC No. 3 well and not effective as to the Marlborough Oil & Gas, LLC No. 1 well, Marlborough's mineral servitude as connected with the leased property, or Marlborough, its successors, lessees, and assigns.

Nevertheless, Marlborough argues that the summary judgment finding Baker Hughes' lien and judgment ineffective, in part, is proper because the operating interest giving rise to Baker Hughes' lien and judgment is expired. The July 8, 2010 lease provides several different terms - a "Primary Term," a "Non-Productive Term," and a "Productive Term." The "Primary Term" is described as being "for a term of one year from the effective date [of the lease, July 8, 2010] and for so long thereafter as oil or gas is being produced in paying quantities or drilling or reworking operations are being conducted on the Lands[ ] with reasonable diligence, in accordance with the provisions hereof."

In claiming that the operating interest giving rise to Baker Hughes' lien and judgment is expired, Marlborough more particularly relies on the "Productive Term" provision of the July 8, 2010 lease.

The "Productive Term" is identified in the lease as "[t]he term ... following the discovery and production of oil or gas in paying quantities." The span of the Productive Term is based on production within a "Producing Block," relative to which the lease provides:

In the event the Louisiana Commissioner of Conservation (or any other regulatory body claiming or having jurisdiction) shall by order fix or establish a drilling or producing unit for or applicable to the Lands, such unit, as of the date of first production in paying quantities from the unit well subsequent to the date of issuance of the order creating such unit, ... shall be deemed, for all purposes of this Lease, to be a Producing Block. Likewise, should any of the leased Lands be included in a unit established by the Louisiana Commissioner of Conservation, the unit well which is not on the leased Lands, the portion of the leased Lands included in said unit shall be deemed, to be a Producing Block as of the date of first production in paying quantities from the unit well subsequent to the date of issuance of the order creating such unit.

The lease further provides that it shall terminate, as to the acreage in the Producing Block, "in the event that production in paying quantities from a Producing Block should cease for any cause" for a period of 90 days and "shall terminate for acreage outside a Producing Block in the event that production in paying quantities should cease from all wells not within a Producing Block" for a period of 90 days. The lease thereafter refers to possible actions a lessee could take, within 90 days of the cessation of production, to prevent termination of the lease.

Marlborough asserts that Baker Hughes offered no evidence to refute the proof that it offered that the Marlborough Oil & Gas, LLC No. 1 and No. 3 wells were no longer producing -- that evidence being the affidavit of Steven T. Burke, a certified, professional "landman" with 42 years of experience in the oil and gas exploration industry. In his affidavit, Mr. Burke, with reference to copies of records from the Office of Conservation, states that the Marlborough Oil & Gas, LLC No. 1 well ceased production in January 2016, and the Marlborough Oil & Gas, LLC No. 3 well was a dry hole. While Mr. Burke's affidavit indicates that no further production was taking place relative to the Marlborough Oil & Gas, LLC No. 1 and No. 3 wells, there is no evidence in the record to indicate that these two wells were the only wells that existed on the 200 acres of land that were subject to the July 8, 2010 lease as to establish that the lease expired under the Productive Term provision.

Without expressing any opinion as to whether the expiration of the lease would, in fact, limit or terminate the effectiveness of Baker Hughes' privilege, we nonetheless find that the express language of the July 8, 2010 lease requires a showing that there was no production by any well within or outside of a Producing Block to establish that the lease is, in fact, expired under the Productive Term provision of the lease. As the movant on the motion for summary judgment and the party raising the contention that the lease is expired, Marlborough bore the burden of establishing such expiration, and failing to do so, we find not only that the burden did not shift to Baker Hughes to disprove Marlborough's assertion, but that genuine issues of material fact exist as to whether the lease is expired.

Further, we are not persuaded by Marlborough's assertion that Baker Hughes' lien and judgment create a cloud on the title of its mineral servitude, preventing it from leasing the property to anyone else to rework the Marlborough Oil & Gas, LLC No. 1 well. As indicated by the Louisiana Supreme Court in Guichard Drilling Company, 94-1275 at p. 18, 657 So.2d at 1319, Baker Hughes can only seize production pursuant to the operating interest/lease under which Northwind operated. Moreover, La. R.S. 9:4863(C) expressly states that the privilege does not affect:

(1) That part of hydrocarbons produced from an operating interest that is owned by a lessor, sublessor, overriding royalty owner, or other person who is not a lessee of the operating interest.
(2) The obligations or proceeds arising from the disposition of such hydrocarbons that are owned by or payable to such persons.

Thus, any new lease negotiated by Marlborough would not be affected by the Baker Hughes' lien and judgment at issue herein.

In its final two assignments of error, Baker Hughes challenges the trial court's finding that the notice of lis pendens that it filed regarding its suit against Northwind, in compliance with La. R.S. 9:4865(C), was insufficient to accord Marlborough due process under Mennonite. Baker Hughes argues that Marlborough's assertion that Baker Hughes' actions in preserving its lien in accordance with the LOWLA violated Marlborough's due process rights was an indirect challenge to the constitutionality of the LOWLA, which challenge could only be made by complying with the requisites of La. C.C.P. art. 1880. See Rapides Parish Police Jury v. Catahoula Duck Club & Lodge L.L.C., 09-64, p. 3 (La. App. 3d Cir. 11/18/09), 24 So.3d 988, 990, writ denied, 09-2778 (La. 2/26/10), 28 So.3d 279.

In the summary judgment appealed, however, the trial court makes no reference to the constitutionality of the LOWLA or any of its provisions; rather, it simply declared Baker Hughes' lien and judgment to be ineffective as to the Marlborough Oil & Gas, LLC No. 1 well, as to Marlborough's mineral servitude, and as to Marlborough, its successors, lessees, and assigns. Moreover, although the trial court's oral reasons for judgment appear to indicate that the notice given Baker Hughes was insufficient to meet constitutional muster, the trial court never expressly stated that the LOWLA or any of its provisions were unconstitutional in the signed judgment, and there is no declaration of unconstitutionality contained anywhere in the judgment appealed.

It is well-settled law that the trial court's oral or written reasons form no part of the judgment, and as appellate courts review judgments, not reasons for judgment, we find the issues raised by Baker Hughes in its final two assignments error are not properly before us for consideration. See La. C.C.P. arts. 1918, 2082, 2083 and Burmaster v. Plaquemines Parish Government, 07-1311, pp. 1-2 (La. 8/31/07), 963 So.2d 378, 379. Accordingly, we decline to address the arguments raised by Baker Hughes relative to its final two assignments of error.

CONCLUSION

While the owners of a lease have a significant interest in preventing their property from becoming encumbered with a lien, it must be remembered that lease owners who engage in drilling must be held to full knowledge that if a laborer or furnisher of materials is not paid, the LOWLA creates a lien against their interests in favor of that laborer or materialman. Guichard Drilling Company, 94-1275 at p. 9, 657 So.2d at 1314. Therefore, pursuant to the foregoing de novo review of the August 29, 2017 summary judgment, we reverse. All costs of this appeal are cast to the appellee, Marlborough Oil & Gas, LLC.

REVERSED.

      Louisiana Revised Statutes 9:4861 (4)(a) defines "operations," in pertinent parts, as:
      [E]very activity conducted by or for a lessee on a well site for the purpose of:
      (i) Drilling, completing, testing, producing, reworking, or abandoning a well.
      (ii) Saving, treating, or disposing of hydrocarbons or other substances produced from a well.
      (iii) Injecting substances into the earth to produce or enhance the production of hydrocarbons.

      At the time the petition was filed, Baker Hughes was known as Baker Hughes Oilfield Operations, Inc.; however, during the course of the litigation, it became known as Baker Hughes, A GE Company, LLC. Marlborough also named T.F. Services, L.L.C. as a defendant in the declaratory judgment action, but it later filed a motion to dismiss T.F. Services, L.L.C., which motion was granted by the trial court in an order signed on May 23, 2017.

      While Baker Hughes also included exceptions raising the objection of improper cumulation of actions, prescription, and no cause of action in its answer that do not appear to have been considered or ruled on by the trial court, we observe that Baker Hughes did not include a proposed order requesting that the exceptions be set for hearing, which would explain the lack of further action regarding those exceptions. See La. Dist. Ct. R. 9.8(a) and Chambers v. Acadian Nursing and Rehabilitation Center, 13-1910, pp. 1-2 (La. App. 1st Cir. 9/19/14), 2014 WL 4657309 (unpublished opinion)(wherein the trial court struck the plaintiffs' motion for new trial for failure to comply with Rule 9.8).

      See Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983).

      Following the lodging of the appeal, this court issued a rule to show cause order, ex proprio motu, questioning the finality of the judgment appealed due to the failure of the judgment to specify whether summary judgment was being granted in full or in part. The order was subsequently referred to this panel to decide. After careful consideration, we observe the judgment appealed grants all of the relief sought by Marlborough in its petition for declaratory judgment. Hence, we find the summary judgment to be a final, appealable judgment. We therefore, recall the rule to show cause order and maintain the appeal.

      An "operating interest" is defined in La. R.S. 9:4861 (5)(a) as a mineral lease or sublease of a mineral lease, or an interest in a lease or sublease that gives the lessee, either singly or in association with others, the right to conduct the operations giving rise to the claimant's privilege.

      The lease provides that the area of land covered by the lease would be referred to in the lease as the "Lands."

      According to Mr. Burke's affidavit, "[a] professional landman works for oil companies putting together tracts of land, mineral leases, rights of way and obtaining other legal instruments for oil wells to get drilled."

      If the mover will bear the burden of proof at trial on the issue before the court in the motion, the burden of showing there is no genuine issue of material fact remains with the mover. See La C.C.P. art. 966(D). Only after the mover makes a prima facie showing that the motion should be granted does the burden shift to the non-moving party to present evidence demonstrating a material factual issue remains. Red Star Consultants, LLC v. Ferrara Fire Apparatus, Inc., 17-0847, p. 4 (La. App. 1st Cir. 2/8/18), 242 So.3d 608, 611.
      We further note that the trial court never made any express determination as to whether the operating interest/lease under which Northwind performed the operations giving rise Baker Hughes' lien and judgment had expired.

      Article 1880 states, in pertinent part, that "[i]f [a] statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard."


author: McCLENDON, J.

text:
    Julie B. HANLEY v. ALLSTATE INSURANCE COMPANY, Anthony Beneditto, & GEICO Casualty Company
    2018 CA 0433
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 28, 2018 Rehearing Denied July 23, 2019
    Timothy J. Martinez, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, Julie B. Hanley
    Kimberly Louper Wood, Baton Rouge, Louisiana, Counsel for Defendants/Appellees, Allstate Property & Casualty Co. & Anthony Beneditto
    Stephen Dale Cronin, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, GEICO Indemnity Co.
    BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

Plaintiff seeks review of a trial court judgment dismissing her claims against a tortfeasor and his liability insurer on the basis of prescription. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Julie B. Hanley, the plaintiff/appellant, was involved in an automobile accident with Anthony Beneditto on August 1, 2013. On October 30, 2014, Ms. Hanley filed suit seeking damages for injuries she allegedly sustained in the accident, naming Mr. Beneditto, Allstate Insurance Company in its capacity as his liability insurer, and GEICO Indemnity Company in its capacity as Ms. Hanley's uninsured/underinsured motorist (UM) insurer, as defendants. The suit was filed in the 19th Judicial District Court and bore docket number 634704.

On August 4, 2017, Mr. Beneditto and Allstate Insurance Company (hereinafter sometimes collectively referred to as "Allstate") filed a peremptory exception raising the objection of prescription. Allstate alleged that since the accident occurred on August 1, 2013, but suit was not filed until October 30, 2014, the action was prescribed on its face against Mr. Beneditto and Allstate and the claims against them should be dismissed with prejudice. Ms. Hanley opposed Allstate's exception.

Following a hearing, the trial court took the matter under advisement. Thereafter, the trial court signed a judgment on November 15, 2017, granting the exception of prescription and dismissing Ms. Hanley's suit against Mr. Beneditto and Allstate with prejudice, leaving only the claim against GEICO.

Asserting that her suit filed against her UM carrier approximately fifteen months post-accident interrupted the prescriptive period against Mr. Beneditto because he and the UM carrier were solidary obligors, Ms. Hanley has appealed.

DISCUSSION

As a general rule, prescription statutes "are strictly construed against prescription and in favor of the obligation sought to be extinguished." Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105 (La. 3/15/11), 62 So.3d 721, 726. Ordinarily, the party urging prescription bears the burden of proof at trial of the exception; however, if the petition is prescribed on its face, the burden shifts to the plaintiff to show the action is not prescribed. Taranto, 62 So.3d at 726. When no evidence is introduced at the exception hearing and no material issues of fact are in dispute, the de novo standard of review is applicable. See Cawley v. Nat'l Fire & Marine Ins. Co., 10-2095 (La.App. 1 Cir. 5/6/11), 65 So.3d 235, 237.

The Louisiana Civil Code provides a one-year liberative prescription period for delictual actions, commencing to run from the date of injury or damage sustained. LSA-C.C. art. 3492. As such, because the accident giving rise to the instant suit occurred on August 1, 2013, Ms. Hanley's October 30, 2014 petition against Mr. Beneditto and Allstate was prescribed on its face. Accordingly, Ms. Hanley bears the burden of proof to show that the action is not prescribed.

On appeal, Ms. Hanley contends that her timely filed suit against her UM Carrier, GEICO, interrupted prescription as to all solidary obligors, including Mr. Beneditto and Allstate. See LSA-C.C. arts. 1799 and 3503. In support, Ms. Hanley cites Kelley v. General Insurance Company of America, 14-0180 (La.App. 1 Cir. 12/23/14), 168 So.3d 528, 539, writs denied, 15-0157, 15-0165 (La. 4/10/15), 163 So.3d 814, 816, wherein this court held that a plaintiff's UM insurer was solidarily liable with a defendant tortfeasor such that the timely filed suit filed against the UM insurer interrupted prescription against all solidary obligors, including the defendant tortfeasor and her liability insurer. See also Hoefly v. Government Employees Ins. Co., 418 So.2d 575, 579 (La. 1982), wherein the Louisiana Supreme Court held that an automobile accident victim's uninsured motorist carrier was solidarily obligated with the tortfeasor such that the victim's timely suit against the tortfeasor interrupted prescription against the insurer.

Kelley is clearly distinguishable. The lawsuit in Kelley was filed within the one-year period for delictual actions, even though the plaintiff had another year to sue his UM carrier under the law. Therefore, when the amended pleading was filed three years after the accident, adding the tortfeasor as a defendant, the prescriptive period applicable to the solidary obligors had already been interrupted. In other words, when the plaintiff timely filed his suit within one year of the accident, the prescriptive period was paused, or interrupted, as to any solidary obligors.

In this case, however, there was no interruption of the prescriptive period applicable to the tortfeasor as the one-year prescriptive period had already run at the time the underlying suit was filed. There could be no interruption where the prescriptive period lapsed prior to the filing of the lawsuit. A timely filed suit against one solidary obligor does not interrupt prescription that has tolled against another solidary obligor. Gallagher Bassett Services v. Canal Insurance Company, 16-0088 (La.App. 1 Cir. 9/16/16), 202 So.3d 1160, 1166 (citing Rizer v. American Surety and Fidelity Ins. Co., 95-1200 (La. 3/8/96), 669 So.2d 387, 390-91 ). The Louisiana Supreme Court has recognized that once prescription extinguishes a cause of action, a subsequent timely suit against a solidary obligor cannot revive the already prescribed action. Rizer, 669 So.2d at 390-91 (citing Bustamento v. Tucker, 607 So.2d 532, 536-37 (La. 1992) ).

Accordingly, while the suit was filed against GEICO within the applicable two-year prescriptive period, the mere fact that Mr. Beneditto and GEICO are solidary obligors cannot revive the prescribed action against Mr. Beneditto and Allstate. To hold otherwise would allow an injured person an additional year to file suit against tortfeasors if a plaintiff's action against his UM carrier is filed within the two-year period provided in LSA-R.S. 9:5629. This would render the one-year prescriptive period found in LSA-C.C. art. 3492 meaningless under these circumstances.

CONCLUSION

For the foregoing reasons, we affirm the trial court's November 15, 2017 judgment granting the exception of prescription and dismissing Ms. Hanley's suit against Mr. Beneditto and Allstate with prejudice. Costs of this appeal are assessed to appellant, Julie B. Hanley.

AFFIRMED.

      We recognize that prior to filing the suit at issue, Ms. Hanley had previously filed suit against Mr. Beneditto, Allstate, and GEICO, on July 25, 2014. The suit was filed in the 19th Judicial District Court and bore docket number 632270. The parties acknowledge that Ms. Hanley failed to request service of that suit and that more than three years has passed since that filing of that suit. Our record does not reveal what else, if anything, has occurred in that suit. Allstate avers that no action has been taken in that matter since it was filed and that the referenced suit was abandoned. See LSA-C.C.P. art. 561. Allstate notes that interruption of prescription is considered never to have occurred if a plaintiff abandons her action. See LSA-C.C. art. 3463. However, while the effect of that suit on the issue of prescription was raised by Ms. Hanley during the course of the trial court proceedings, she has not raised that argument on appeal. Additionally, the suit record of that docket number was not introduced into evidence nor can we can take judicial notice of same. See LSA-C.E. art. 202 and Pinegar v. Harris, 06-2489 (La.App. 1 Cir. 5/4/07), 961 So.2d 1246, 1249.

      Louisiana Revised Statutes 9:5629 provides a two-year prescriptive period to bring an action against a UM insurer as follows:
      Actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.

      Louisiana Civil Code article 1799 provides:
      The interruption of prescription against one solidary obligor is effective against all solidary obligors and their heirs.
      Louisiana Civil Code article 3503 provides:
      When prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors and their successors.
      When prescription is interrupted against a successor of a solidary obligor, the interruption is effective against other successors if the obligation is indivisible. If the obligation is divisible, the interruption is effective against other successors only for the portions for which they are bound.