PAUL LEVERT AUGUST LEVERT JR FAMILY RONALD LEVERT MARK LEVERT JR JOHN SANFORD JAMES SANFORD AND CAMPO MATENS v. UNION TEXAS INTERNATIONAL CORPORATION CHEVRON INC KEY PRODUCTION COMPANY INC ATLANTIC RICHFIELD COMPANY AND NOVA CHEMICALS OLEFINS LLC (2024)

In this legacy lawsuit,¹ plaintiff August J. Levert, Jr., Family, L.L.C. (“Levert LLC”) appeals the trial court's grant of summary judgment in favor of defendants, Union Texas International Corporation and Atlantic Richfield Company (collectively, the “ARCO Defendants”), dismissing all claims of Levert LLC against the ARCO Defendants pursuant to the subsequent purchaser doctrine. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On July 22, 2019, plaintiffs, including Levert LLC,² filed suit against multiple defendants who were alleged to have conducted, directed, and participated in oil and gas production activities on plaintiffs’ property located in West Baton Rouge Parish in the Bayou Choctaw Oil and Gas Field, consisting of 160 acres in the Southeast Quarter of Section 28, Township Eight South, Range Eleven East (the “Property”). Plaintiffs allege to be owners or former owners of the Property, lessors, successors-in-interest, assignees, and/or beneficiaries of the obligations owed by defendants. According to plaintiffs, the defendants’ oil and gas operations damaged the Property by spilling, leaking, discharging, and disposing of toxic and hazardous oilfield content and waste on, in, and adjacent to the Property. Plaintiffs advanced in the petition claims sounding in tort and breach of contract, including negligence under La. Civ. Code art. 2315; liability under pre-1996 La. Civ. Code arts. 667, 2317, 2317.1, 2322, and current La. Civ. Code 667; nuisance and trespass, including remedies under La. Civ. Code art. 486; breach of lease, agreements, and other contracts, including breach of the standards imposed by La. Civ. Code arts. 2683, 2686, 2687, 2688, and 2692 and breach of the Mineral Code, La. R.S. 31:1, et seq., including articles 11, 122, 128, 129, and 134. Plaintiffs also advanced claims for remediation and/or damages available under La. R.S. 30:29 (Act 312), to the extent applicable.

The ARCO Defendants are successors to Union Texas Petroleum Corporation (“UTP”). On January 23, 1981, UTP entered into a lease (the “1981 Lease”) of the Property with members of the Levert family (“Levert Heirs”). Pursuant to the 1981 Lease, UTP was authorized to use the Property for underground brine disposal and to convert and use the Levert Heirs 1-B Well (Serial No. 76522) as a brine disposal well.³

On September 22, 2022, the ARCO Defendants filed a motion for summary judgment seeking to dismiss Levert LLC's claims against them. The ARCO Defendants argued that Levert LLC's claims against them were barred pursuant to the subsequent purchaser doctrine. The subsequent purchaser doctrine holds that an owner of property has no right or actual interest in recovering from a third party for damage which was inflicted on the property before his purchase, in the absence of an assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted. Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 2010-2267 (La. 10/25/11), 79 So.3d 246, 256-57.

The ARCO Defendants maintained that their connection to the Property and their related oil and gas operations ceased in 1987. Further, Levert LLC did not acquire any interest in the Property until 1998, which was ten years after the ARCO Defendants’ predecessor last operated or held an interest in the Property. Additionally, the ARCO Defendants maintained that the transfers of the Property to Levert LLC failed to assign the personal right to sue for pre-acquisition damage to the Property. In support, the ARCO Defendants attached to their motion multiple documents, namely the plaintiffs’ petition for damages; the affidavit of Keith Dronet, a certified professional landman, which affidavit included the 1981 Lease recorded on February 12, 1981, the January 15, 1985 Conveyance, the December 4, 1996 Certificate of Name Change, and the September 13, 1999 Certificate of Merger; and the affidavit of Howard J. Held, a landman, with numerous exhibits attached thereto relative to the contributions of capital and transfers of property to Levert LLC.

Levert LLC opposed the ARCO Defendants’ motion for summary judgment, citing three reasons that the subsequent purchaser doctrine was inapplicable: (1) Levert LLC is the current lessor to the relevant and active lease; (2) Levert LLC is a third-party beneficiary of the 1981 Lease; and (3) there was no sale and no purchaser.⁴ In support, Levert LLC attached to its opposition the affidavit of Paul M. Levert, which affidavit included the Act of Distribution relative to Levert LLC; the affidavit of Lindsay E. Reeves, which affidavit included the 2001 Amendment to Lease Agreement (the “2001 Amendment”) and the 2021 Second Amendment to Lease Agreement (the “2021 Amendment”); and a copy of Justice Genovese's vote to grant the writ, with reasons, in Louisiana Wetlands, LLC v. Energen Resources Corporation, 2021-01610 (La. 1/12/22), 330 So.3d 614.

The matter was heard by the trial court on October 24, 2022. At the conclusion of the hearing, the trial court granted the ARCO Defendants’ motion for summary judgment. On November 15, 2022, the trial court signed a judgment granting the motion and dismissing with prejudice all claims and causes of action asserted by Levert LLC against the ARCO Defendants. This appeal followed.

On appeal, Levert LLC assigns the following errors of the trial court: (1) ruling that the subsequent purchaser doctrine applies to bar Levert LLC's contractual claims; (2) ruling that the subsequent purchaser doctrine applies to bar contractual claims arising out of a recorded lease; and (3) ruling that the lease term requiring a lessee to pay for “any” damage caused by the lessee's activity does not create a stipulation pour autrui.

LAW AND DISCUSSION

Appellate courts review summary judgments de novo, using the same standards applicable to the trial court's determination of the issues. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate. Cabana Partners, LLC v. Citizens Bank & Trust Co., 2018-0133 (La. App. 1st Cir. 12/21/18), 269 So.3d 986, 990. See also La. Code Civ. P. art. 966(A)(3). After an opportunity for adequate discovery, 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. Code Civ. P. art. 966(A)(3).

Summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though granting the summary judgment does not dispose of the entire case as to that party or parties. La. Code Civ. P. art. 966(E). Moreover, summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code Civ. P. art. 966(F). See Guilbeau Marine, Inc. v. Ledet, 2023-0065 (La. App. 1st Cir. 9/15/23), 375 So.3d 977, 984, writ denied, 2023-01369 (La. 12/19/23), 375 So.3d 411 (noting that failure to enforce La. Code Civ. P. art. 966(F) results in the non-mover being required to respond to the motion by submitting evidence that it will be able to carry its burden of proof as to all essential elements of his claim, regardless of whether a particular element of his claim was placed at issue by the motion or not).

The burden of proof rests with the mover. La. Code Civ. P. art. 966(D)(1). However, if the mover will not bear the burden of proof at trial on the issue before the court, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense. Rather, the mover must point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See La. Code Civ. P. art. 966(D)(1).

In this case, the operative facts are not in dispute. The ARCO Defendants’ predecessor, UTP, the original lessee under the 1981 Lease, ceased operations on the Property in 1987 and did not hold any interest in the Property under the 1981 Lease after January 1985. Levert LLC was not formed until 1997. Beginning in 1998, the Levert Heirs transferred, conveyed, and exchanged their respective ownership interests in the Property to Levert LLC through multiple “Contributions of Capital and Transfer of Property.”⁵ Additionally, it is not genuinely disputed that Levert LLC became a named party to the 1981 Lease through the 2001 Amendment. The 1981 Lease, which was recorded in 1981, remains active.

Without disputing that the language of the exchanges between the Levert Heirs and Levert LLC did not contain an assignment of personal rights, Levert LLC disagreed that the subsequent purchaser doctrine applies to bar its contractual claims under the lease, which is a legal question. Additionally, Levert LLC argued, in the alternative, that it was a third-party beneficiary to the lease, allowing it to recover damages inflicted on the Property.

The Subsequent Purchaser Doctrine and the Lease (Assignments of Error One and Two)

While commonly referred to as a jurisprudential rule, the subsequent purchaser doctrine is expressly rooted in principles of property law and obligations. See Eagle Pipe, 79 So.3d at 264. The right to seek damages arising from the injury to property is personal in nature. E.g. Clark v. J.L. Warner & Co., 6 La. Ann. 408, 409 (1851); see also La. C.C. art. 1766 (An obligation is strictly personal when its performance can be enforced only by the obligee, or only against the obligor.). Because this right is not a real obligation, it does not automatically transfer to a successor who acquires the damaged property. See Eagle Pipe, 79 So.3d at 262 (observing that real rights and real obligations pass to a subsequent acquirer of the thing to which it is attached without the need of a stipulation to that effect and that a personal right cannot be asserted by another in the absence of an assignment or subrogation).

Additionally, a lease of immovable property is a personal right and not a real right. E.g. Ciolino v. First Guaranty Bank, 2012-2079 (La. App. 1st Cir. 10/30/13), 133 So.3d 686, 693 (citing Eagle Pipe, 79 So.3d at 262 and Prados v. South Central Bell Telephone Co., 329 So.2d 744, 749 (La. 1975) (on rehearing)). A lease does not convey any real right or title to the property leased, but only a personal right. Eagle Pipe, 79 So.3d at 262. In Louisiana Wetlands, LLC v. Energen Resource Corporation, 2021-0290 (La. App. 1st Cir. 10/4/21), 330 So.3d 674, 679, writ denied, 2021-01610 (La. 1/12/22), 330 So.3d 614 (citing Eagle Pipe, 79 So.3d at 270), this court acknowledged that “the right to sue for breach of a lease is a personal right that belongs to the lessor.” See also Lexington Land Dev., L.L.C, v. Chevron Pipeline Co., 2020-0622 (La. App. 1st Cir. 5/25/21), 327 So.3d 8, 29-30, writ denied, 2021-01194 (La. 11/17/21), 327 So.3d 996 (noting that the right to sue for damages conferred by a mineral lease is a personal right that does not pass to a subsequent purchaser of property absent an express assignment or subrogation). Accordingly, the same principles of personal obligations barring a subsequent purchaser's claims for damages also bar a subsequent lessor's claims for damages resulting from the breach of a lease absent an assignment or subrogation.

Notably, in Prados, 329 So.2d at 779, the Supreme Court acknowledged that when a lessor sells property during the term of a recorded lease,⁶ the purchaser, in the absence of a contrary stipulation, is bound by the obligations of the lessor. Further, in the absence of a contrary stipulation, the lessor is likewise entitled to rent accruing subsequent to his acquisition.7 Importantly, the subsequent purchaser cannot recover from the lessee rent that had accrued prior to the sale. Id.

This court in Ciolino, also acknowledged that while the purchaser and his successors are entitled to collect the rent and are correspondingly bound to maintain the lessee in undisturbed enjoyment, they are not bound by personal obligations that the former owner assumed with respect to the property, even vis-a-vis the lessee. Ciolino, 133 So.3d 694. During the term of a lease, a purchaser of immovable property acquires no right to recover from the lessee for property damage sustained before the sale. Prados, 329 So.2d at 750.

The jurisprudence is clear that damages ensuing from a prior breach of a lease ⁸ and rent accruing prior to the subsequent purchaser's acquisition of the property ⁹ are barred by the subsequent purchaser doctrine unless assigned or subrogated in the transferring document. Accordingly, it follows that the right to seek injunctive relief, dissolution, or damages pursuant to La. Civ. Code art. 2686 ¹⁰ is a personal right that accrues to the lessor at the time that the damage or improper use occurred. Additionally, the lessee's obligation to repair damage and deterioration pursuant to La. Civ. Code art. 2692 ¹¹ is likewise personal. Unless those personal rights are assigned or subrogated to a subsequent owner, the rights remain with the owner and lessor at the time the damage or improper use occurred.

We find that, as a matter of law, the personal right to sue for damages arising in tort or for damages or other remedies under the 1981 Lease which occurred prior to Levert LLC's acquisition of the Property are barred by the subsequent purchaser doctrine. In light of the fact that the ARCO Defendants ceased operations on the Property in 1987, prior to Levert LLC's acquisition of the Property, the trial court correctly granted the ARCO Defendants’ motion for summary judgment in this respect, as Levert LLC cannot enforce a prior owner's personal rights in this case.

We note that the ARCO Defendants motion for summary judgment broadly sought to dismiss all of Levert LLC's claims pursuant to the subsequent purchaser doctrine, which the trial court granted in full. The motion raised no other issues nor sought to attack any other claims, other than those barred by the doctrine. However, we find that the subsequent purchaser doctrine does not address or dispose of all of Levert LLC's claims asserted against the ARCO Defendants.¹²

Because the 1980 Lease is still active ¹³ and Levert LLC is a named party to the lease, Levert LLC acquired the right to enforce the provisions of the 1981 Lease from its acquisition in 1998 forward. The petition alleges, generally, that “[f]rom 1950 through at least 2004, the Defendants operated, controlled ․ the Defendants’ Oilfield Facilities located on and adjacent to Plaintiffs’ Property, including production pits into which oilfield waste ․ was discharged.” Included in the list of wells from which the oilfield waste was allegedly generated is the brine disposal well (Levert Heirs 1-B Well) and the subject well in the 1981 Lease.

While the ARCO Defendants could not have caused damage after Levert LLC's acquisition, the ARCO Defendants failed to address contractual claims and obligations arising under the 1981 Lease after Levert LLC's acquisition of the Property, for which the ARCO Defendants could be obligated. See Ciolino, 133 So.3d at 695-96 (finding banks, who were prior lessees and who transferred a lease by assignment to subsequent lessees, remained liable for the performance of all obligations pursuant to the terms of the lease and La. Civ. Code arts. 1821 and 1886, including the payment of rent that became due after the current owners acquired the property and after banks assigned their interest). Levert LLC noted the ARCO Defendants’ failure to address these contractual claims and obligations and argued that the ARCO Defendants did not support their assertion that they had no obligations under the 1981 Lease and “fully conveyed and divested its interest in the 1981 Lease.” Specifically, Levert LLC argued that, pursuant to La. Civ. Code art. 1821, the original lessee (the ARCO Defendants) remains bound unless it is released. Article 1821 provides as follows:

An obligor and a third person may agree to an assumption by the latter of an obligation of the former. To be enforceable by the obligee against the third person, the agreement must be made in writing.

The obligee's consent to the agreement does not effect a release of the obligor.

The unreleased obligor remains solidarily bound with the third person. Additionally, La. Civ. Code art. 1886 provides, in part, that a delegation of performance by an obligor to a third person effects a novation only when the obligee discharges the original obligor.¹⁴ The subsequent purchaser doctrine is not applicable and does not dispose of claims for damages arising under the 1981 Lease after Levert LLC's acquisition of the Property for which the ARCO Defendants could be solidarily bound with a subsequent lessee. Accordingly, we find merit as to a portion of Levert LLC's assignments of error one and two.¹⁵

Because the ARCO Defendants’ motion for summary judgment was based on the sole theory of subsequent purchaser doctrine, only Levert LLC's claims sounding in tort or for damages or other remedies under the 1981 Lease for damages occurring prior to Levert LLC's acquisition of the Property were properly dismissed. Therefore, we find that the trial court erred to the extent it dismissed any additional claims of Levert LLC against the ARCO Defendants.

Third Party Beneficiary (Assignment of Error Three)

In the alternative, Levert LLC maintained that it was a third party beneficiary to the 1981 Lease. Pursuant to La. Civ. Code art. 1978, “[a] contracting party may stipulate a benefit for a third person called a third party beneficiary,” which is commonly referred to as a “stipulation pour autrui.” Joseph v. Hosp. Serv. Dist. No. 2 of Par. of St. Mary, 2005-2364 (La. 10/15/06), 939 So.2d 1206, 1211. The stipulation gives the third party beneficiary the right to demand performance from the promisor. La. Civ. Code art. 1981. Importantly, a stipulation pour autrui is never presumed. Rather, the intent of the contracting parties to stipulate a benefit in favor of a third party must be made manifestly clear, and the party claiming the benefit bears the burden of proof. Joseph, 939 So.2d at 1212. Additionally, there must be certainty as to the benefit provided the third party and the benefit cannot be a mere incident of the contract. Id.

Levert LLC argues that the language in Section 1.5 of the 1981 Lease created a stipulation for the benefit of a third party. Section 1.5, entitled “Cost of Pipeline,” provided as follows:

Lessee shall pay Lessors $200.00 per rod for pipeline installed on the Leased Premises and any destruction to timber or crops on the Leased Premises and for any other damage which may be occasioned by Lessee's activity. Pipes shall be laid at a depth beneath the surface of the soil so as not to interfere with surface activity or cultivation or the rights of other lessees.

Levert LLC focuses primarily on that portion of Section 1.5 providing that the “Lessee shall pay...for any other damage which may be occasioned by Lessee's activity.” (Emphasis added.) Levert LLC simply removes the specific reference to “Lessors” from the provision. However, the provision is for the benefit of the Lessors - for Lessees to pay Lessors $200.00 per rod and for any other damage. Notwithstanding Levert LLC's arguments,¹⁶ we find that there is no clear manifestation of a stipulation for the benefit of a third party in Section 1.5. Levert LLC's third assignment of error is without merit.

CONCLUSION

For the forgoing reasons, we affirm that portion of the trial court's November 15,2022 judgment dismissing, with prejudice, August J. Levert, Jr., Family, L.L.C.’s claims for damages against Union Texas International Corporation and Atlantic Richfield Company arising in tort or for damages or other remedies under the January 23, 1981 Lease and occurring prior to August J. Levert, Jr., Family, L.L.C.’s acquisition of the property located in West Baton Rouge Parish in the Bayou Choctaw Oil and Gas Field, consisting of 160 acres in the Southeast Quarter of Section 28, Township Eight South, Range Eleven East. We reverse that portion of the trial court's November 15, 2022 judgment dismissing, with prejudice, any additional claims of August J. Levert, Jr., Family, L.L.C, against Union Texas International Corporation and Atlantic Richfield Company. This matter is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed one-half to Union Texas International Corporation and Atlantic Richfield Company and one-half to August J. Levert, Jr., Family, L.L.C.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

I disagree with the majority's conclusion that the trial court erred in dismissing all of Levert LLC's claims pursuant to the subsequent purchaser doctrine. The majority concedes that the ARCO defendants could not have caused damage after Levert LLC's acquisition of the property, but finds that the subsequent purchaser doctrine does not dispose of claims against the ARCO defendants for which they could be solidarily bound with the subsequent lessee, pursuant to LSA-C.C. art. 1821. The majority cites Ciolino v. First Guaranty Bank, 2012-2079 (La.App. 1 Cir. 10/30/13), 133 So.3d 686, 695-96, as authority, which I find to be distinguishable. The Ciolino case involved claims for rental payments, as opposed to claims for damage to property. Accordingly, I respectfully dissent in part.

I disagree with the majority's application of the subsequent purchaser doctrine to the facts herein. My dissent is based upon Bergeron v. B-P Amoco, 2023-0212 (La. App. 4th Cir. 12/20/23), 382 So. 3d 368 and Justice Genovese's dissent from the denial of the writ in Louisiana Wetlands, LLC v. Energen Resources Corporation, 2021-01610 (La. 1/12/22), 330 So. 3d 614.¹ Further, I do not believe it has been shown that Louisiana Wetlands, LLC v. Energen Resources Corporation, 2021 -0290 (La. App. 1st Cir. 10/4/21), 330 So. 3d 674, writ denied, 2021-01610 (La. 1/12/22), 330 So. 3d 614 is factually applicable to this case. Accordingly, I dissent from the majority decision.

FOOTNOTES

1.   As observed by the Louisiana Supreme Court, these types of actions are referred to as “legacy litigation” because they often arise from operations conducted many decades ago, leaving an unwanted “legacy” in the form of actual or alleged contamination. See Marin v. Exxon Mobil Corporation, 2009-2368 (La. 10/19/10), 48 So.3d 234, 238, n.1 (citing Loulan Pitre, Jr., “Legacy Litigation” and Act 312 of 2006, 20 Tul. Envt. L.J. 347, 348 (Summer 2007)).

2.   Additional plaintiffs are Paul M. Levert, Ronald R. Levert, Mark W. Levert, Jr., John E. Sanford, James L. Sanford, and Campo E. Matens. The ARCO Defendants expressly did not seek to dismiss the claims of any of the additional plaintiffs through the summary judgment before this court.

3.   The Levert Heirs 1-B Well was an existing well on the Property, which well had been plugged and abandoned by Block Exploration Corporation on March 9, 1978. In accordance with the 1981 Lease, the Levert Heirs 1-B Well was converted to a saltwater disposal well on April 25, 1981. The 1981 Lease expressly stated that “Lessee shall have no right to explore for, drill, for or produce oil, gas or other minerals now in or under the Leased Premises, an[d] shall not interfere with or hinder such exploration or production.”

4.   Levert LLC argued before the trial court that the subsequent purchaser doctrine only applies when the transaction conveying the property is a “sale.” Levert LLC further argued that this court's decision in Louisiana Wetlands, LLC v. Energen Resources Corporation, 2021-0290 (La. App. 1st Cir. 10/4/21), 330 So.3d 674, 679, writ denied, 2021-01610 (La. 1/12/22), 330 So.3d 614, finding that it is immaterial how property is transferred to a particular successor for purposes of subsequent purchaser doctrine was erroneous and an unwarranted expansion of the doctrine to non-sale transactions. Levert LLC did not advance this argument before this court on appeal.

5.   It is noted that the transfer of the Property from the Levert Heirs to Levert LLC was an exchange. See La. Civ. Code art. 2660 (defining “exchange” as a contract whereby each party transfers to the other the ownership of a thing other than money). Except in certain instances, such as those involving lesion (see La. Civ. Code art. 2663), the rules governing contracts of sale, including redhibition principles, also apply to contracts of exchange. La. Civ. Code art. 2664; Watkins v. Freeway Motors, 29,385 (La. App. 2d Cir. 4/2/97), 691 So.2d 854, 856. But see Heirs of Bergeron v. B-P Amoco, 2023-0212 (La. App. 4th Cir. 1/22/24), 385 So.3d 266, 267 (on rehearing) (finding that “[t]here is no legal remedy of recession or termination of exchange that would rectify the alleged damages”).

6.   Louisiana Revised Statutes 9:2721(B) provides as follows:Anyone who acquires immovable property in this state, whether by sale, sheriff's sale, giving in payment, or in any other manner, which property is subject to a recorded lease agreement that is not divested by the acquisition, shall take the property subject to all of the provisions of the lease, including any provision for the payment of a commission to a leasing agent or other third party, provided that the lease was recorded prior to the recordation of the document which establishes the rights of the person who acquires the property. Such document shall include but is not limited to a mortgage, option to purchase, or other writing.

7.   This court in Ciolino further explained that the provisions of the Louisiana Civil Code governing leases derive from the French Civil Code, providing that the acquirer of a thing subject to a lease assumes the position of the lessor and is subrogated to his rights and duties for reasons of social and economic utility. Ciloino, 133 So.3d at 694 (citing A.N. Yiannopolous, 2 Louisiana Civil Law Treatise, Property, at § 226 (4th ed. 2001), now A.N. Yiannopoulos & Ronald J. Scalise Jr., 2 Louisiana Civil Law Treatise, Property, at § 9:26 (5th ed. 2022)). This court observed that the social and economic utility was “readily apparent.” Ciloino, 133 So.3d at 694. If the transferee is obligated by the lease to maintain the lessee in peaceful possession of the property, then it is reasonable that the transferee likewise has the corresponding right to receive the rent set forth in the lease. Id.

8.   Pursuant to La. Civ. Code art. 2683(2), a lessee is obligated to use the thing as a prudent administrator and in accordance with the purpose for which it was leased. Additionally, a lessee is liable for damage to the thing caused by his fault or that of a person who, with his consent, is on the premises or uses the thing. La. Civ. Code art. 2687.

9.   Pursuant to La. Civ. Code art. 2683(1), a lessee is obligated to pay the rent in accordance with the agreed terms.

10.   Louisiana Civil Code article 2686 provides that if a lessee uses the thing for a purpose other than that for which it was leased or in a manner that may cause damage to the thing, the lessor may obtain injunctive relief, dissolution of the lease, and any damages he may have sustained.

11.   Louisiana Civil Code article 2692 provides that the lessee is bound to repair damage to the thing caused by his fault or that of persons who, with his consent, are on the premises or use the thing, and to repair any deterioration resulting from his or their use to the extent it exceeds the normal or agreed use of the thing.

12.   The ARCO Defendants blanketly assert that all claims of Levert LLC must be dismissed because the subsequent purchaser doctrine operates to prohibit Levert LLC from “bring[ing] claims against the ARCO Defendants for damage that occurred prior to its acquisition of the subject property in 1998.” Despite the request to dismiss all claims of Levert LLC, the ARCO Defendants only reference and attack the claims for damages to the Property that occurred before 1998 or before Levert LLC's acquisition of the Property. The ARCO Defendants’ motion for summary judgment did not separately address or acknowledge contractual claims and obligations allegedly arising under the 1981 Lease after Levert LLC's acquisition in 1998 for which the ARCO Defendants could be liable. Notably, Levert LLC alleged that damage occurred from 1950 through at least 2004, which includes the period when Levert LLC acquired the Property. Further, Levert LLC alleged in the petition, in part, as follows:Defendants’ acts and omissions constitute breaches of the leases, agreements, and other contracts listed herein, which covered the oil and gas activities described above.․Defendants are parties, assignors, assignees, lessors, and lessees of the leases, agreements, and contracts herein, and as such are liable to Plaintiffs for all obligations and liabilities of the parties, assignors, assignees, lessors, and lessees under the leases, agreements, and contacts.․Defendants are solidarily liable with all assignors, assignees, and sublessees with respect to the leases and contracts affecting the Plaintiffs’] Property and the damages alleged herein.

13.   The ARCO Defendants note in the brief filed with this court that the “ARCO Defendants dispute [Levert LLC's] characterization of the 1981 Lease as still being active against them. But, for the reasons detailed herein, such dispute is irrelevant to this appeal.”

14.   We note that the ARCO Defendants did not address the lack of novation in its memoranda in support of its motion for summary judgment. Novation may not be presumed; rather, the intention to extinguish the original obligation must be clear and unequivocal. La. Civ. Code art. 1880.

15.   We further note that Levert LLC claims damages for the restoration, cleanup, and remediation of contamination that impacts or threatens to impact groundwater in addition to damages and/or remediation available under La. R.S. 30:29 (Act 312), to the extent applicable. See Marin v. Exxon Mobil Corporation, 2009-2368, 2009-2371 (La. 10/19/10), 48 So.3d 234, 256 n.18 (noting that “regardless of who has standing to pursue claims for money damages, the current owner of property always has the right to seek a regulatory cleanup of a contaminated site” (emphasis in original)). As stated by the Second Circuit in Walton v. Exxon Mobil Corp., 49,569 (La. App. 2d Cir. 2/26/15), 162 So.3d 490, 495, writ denied, 2015-0569 (La. 11/16/15), 184 So.3d 25, Act 312 enacted a procedural remedy for remediation of environmental damage of land against the party or parties who caused the damage or who are otherwise legally responsible therefor. La. R.S. 30:29(C). The subsequent purchaser doctrine does not dispose of Levert LLC's claims for remediation as set forth in La. R.S. 30:29, et seq.

16.   The applicable provisions in the cases cited by Levert LLC do not contain a reference to whom the lessee is responsible, unlike Section 1.5 of the 1981 Lease, and are not “essentially the same” as posited by Levert LLC. Duck v. Hunt Oil Co., 2013-628 (La. App. 3d Cir. 3/5/14), 134 So.3d 114, 120, writs denied, 2014-0703, 2014-0709, 2014-0715, and 2014-0735 (La. 6/13/14), 140 So.3d 1189-90 (“No well shall be drilled nearer than two hundred (200) feet to the house or barn on said land without the written consent of Lessor, and Lessee shall be responsible for all damages caused by Lessee's operations other than damages necessarily caused by the exercise of the rights herein granted.”) (Emphasis removed.); Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 2002-266 (La. App. 3d Cir. 4/2/03), 844 So.2d 380, 386, writs denied, 2003-1585 and 2003-1624 (La. 10/31/03), 857 So.2d 476 (“Grantee shall be responsible for all damages caused by his operations.”); and Andrepont v. Acadia Drilling Co., 255 La. 347, 351, 231 So.2d 347, 348 (1969) (“The lessee shall be responsible for all damages caused by lessee's operations.”).

1.   As noted in Bergeron, the availability of other remedies provided to a subsequent purchaser does not apply to a transfer from individual heirs to a partnership when the individual heirs receive shares in the partnership and not money. Bergeron, 382 So. 3d at 374-375. Unlike the arm's-length transaction considered in Eagle Pipe and Supply, Inc, v. Amerada Hess Corp., 2010-2267 (La. 10/25/11), 79 So. 3d 246, this transaction does not provide to the heirs a cause of action in redhibition nor the right to sue for rescission of the sale or the reduction of the purchase price.

HESTER, J.

Chutz, J. concurs Miller, J. dissents for reasons assigned McClendon, J. concurs in part and dissents in part for reasons assigned.