JAMES SELF WILMA SELF v. BPX OPERATING COMPANY (2024)

For the reasons stated in my original dissent, I would grant rehearing. I continue to believe that negotiorum gestio applies when a unit operator voluntarily sells an unleased mineral owner's (“UMO”) share of production based on La. R.S. 30:10(A)(3). Additionally, I am concerned about the perhaps unintended consequence of the majority's holding, which appears to effectively write the doctrine of negotiorum gestio out of the Louisiana Civil Code. The decision unquestionably and unnecessarily limits the scope of this ancient civil law doctrine, which encourages altruism.

Negotiorum gestio, conceived in Roman antiquity, passed on to the law of Louisiana through Spanish and French sources, and purposely and intentionally kept alive in the contemporary law of Louisiana for over two centuries, may well not survive the interpretation in the majority opinion. Negotiorum gestio is specifically incorporated into La. C.C. art. 1757, which provides the sources of obligations. The doctrine, incorporated into Louisiana Civil Codes since 1808, was retained in the 1995 revision of Book III, Title V of the Louisiana Civil Code of 1870. The doctrine continues to be invoked in the jurisprudence in various contexts. It is clear the doctrine remains relevant and viable, and the legislature has expressed no intent to eliminate this concept. However, in effect, the majority opinion does just that.

Louisiana C.C. art. 2292 provides for negotiorum gestio when the manager acts “without authority.” But the act must also be licit (i.e., not unlawful or against public policy).¹ By interpreting “authority” in the context of negotiorum gestio broadly to include codal permission, the majority opinion creates a result in which a legally permissible act cannot be addressed by the law of negotiorum gestio, and a legally prohibited act similarly cannot be addressed by the law of negotiorum gestio. I suggest such interpretation thereby creates an absurd result that, codally, the judiciary is to avoid in interpretation. See La. C.C. art. 9.

The majority opinion answers the certified question with minimal examination and no analysis of the doctrine itself, simply relying on the sole dissenting opinion of my learned colleague Judge James Dennis, which dissent is not well supported in this case. Self v. BPX Operating Co., 80 F.4th 632, 640-41 (5th Cir. 2023) (Dennis, J., dissenting). As pointed out in my original dissent, the only source cited by Judge Dennis to support his interpretation of the “without authority” language is a 1994 student law review comment, which itself cites to a 1961 student comment (“Solis comment”)(J. Menalco Solis, Comment, Management of the Affairs of Another, 36 Tul. L. Rev. 108, 115 (1961)) as an authoritative source for the proposition that use of “without authority” in La. C.C. art. 2292 accords with the German civil law doctrine that there must be “an absence of authority altogether.”² However, the Solis comment long predated the 1995 Civil Code revision and Article 2292 (1995), and obviously could not presume to discuss or interpret the relevant change in codal language.³ There is absolutely no legal basis to find the legislature intended a significant substantive change in the negotiorum gestio requirements. To the contrary, comment (b) to Article 2292 as well as the Expose des Motifs relative to revised Article 2292 support a finding that the requirements “of his own accord” and “without authority” are in accord with each other and support the long-held understanding that negotiorum gestio involves a voluntary act by one who is under no obligation to take action by law or contract.

Unfortunately, the scant analysis in the majority opinion will have a significant outcome. Broadly interpreting “without authority” to mean without legal permission to act, rather than without a legal duty to act, effectively eliminates negotiorum gestio from the Civil Code because the required “authority” and “licitness” elements cannot be simultaneously satisfied. The majority opinion also overrules over thirty years of Louisiana jurisprudence applying negotiorum gestio in the context of La. R.S. 30:10(A)(3).⁴ My opinion remains that a proper interpretation of “without authority” should focus on the voluntary nature of the act and be understood to mean the action is not taken pursuant to a legal obligation, as extensively detailed in my original dissent. Having legal permission to act is not the same as being under a legal obligation to act. Under this interpretation, the unit operator who voluntarily sells production pursuant to La. R.S. 30:10(A)(3) is acting as a negotiorum gestor based on La. C.C. art. 2292.

As discussed in the dissent, the law of negotiorum gestio perfectly balances the rights of the unit operator, who must act as a prudent administrator, and the UMO to pay the reasonable expenses of the unit operator acting as a gestor.

Lastly, as indicated in my dissent,

Although the majority holds negotiorum gestio does not apply in this case, I point out this does not resolve the underlying issue of whether the operator is entitled to reimbursement of its post-production costs. The operator has asserted alternative legal bases of recovery, such as enrichment without cause. Because I find negotiorum gestio applicable to resolve the ultimate issue, it is not necessary to address the alternative arguments in dissent.

Self v. BPX Operating Co., 23-01242, p. 24 n.20 (La. 6/1/24), ____ So.3d ____, ____ n.20 (Weimer, C.J., dissenting). The role of the court should be to resolve legal questions of Louisiana law, not leave questions unanswered.

FOOTNOTES

1.   See Alain A. Levasseur & Nikolaos A. Davrados, Louisiana Law of Contracts and Quasi-Contracts, A Precis, pp. 188-89 (2024).

2.   See Cheryl L. Martin, Louisiana State Law Institute Proposes Revision of Negotiorum Gestio and Codification of Unjust Enrichment, 69 Tul. L. Rev. 181, 189 (1994).

3.   The Solis comment briefly discussed different scholars’ interpretations of the term “voluntarily” in the context of negotiorum gestio. Notably, the comment discussed the Spanish scholar Scaevola, who opined that in this context it “means absence of legal or conventional authority. Thus, the gestor must not be legally or conventionally bound to act in favor of the owner; otherwise, the owner's action could take a contractual character.” Solis, Comment, 36 Tul. L. Rev. at 114-15.Louisiana R.S. 30:10(A)(3) does not obligate or create a legal duty for the unit operator to “sell or otherwise dispose of the share” of production attributable to the UMO's tract. Rather, the provision only obligates the unit operator to “pay” the UMO within 180 days from “sale or other disposition” of the unit production.

4.   See, e.g., Taylor v. Smith, 619 So.2d 881, 887 (La.App. 3 Cir. 1993); Taylor v. David New Operating Co., Inc., 619 So.2d 1251, 1255 (La.App. 3 Cir. 1993); Taylor v. Woodpecker Corp., 93-0781 (La.App. 1 Cir. 3/11/94), 633 So.2d 1308, 1313; see also Wells v. Zadeck, 11-1232, p. 6 (La. 3/30/12), 89 So.3d 1145, 1149.

WEIMER, C.J., would grant rehearing.