Opinion
No. CA-5560.
March 16, 1987. Rehearing Denied April 15, 1987. Writ Granted June 19, 1987.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE GERALD P. FEDOROFF, J.
John M. McCollam, Guy E. Wall, Gordon, Arata, McCollam, Stuart Duplantis, New Orleans, for plaintiff-appellant.
David N. Schell, Jr., Charles D. Marshall, Jr., Milling, Benson, Woodward, Hillyer, Pierson Miller, New Orleans, for defendant-appellee.
Before SCHOTT, GARRISON and ARMSTRONG, JJ.
On April 29, 1981, Federated Energy Corporation ("FEC") entered into an agreement with Prentice Oil and Gas whereby FEC became obligated to drill two oil and gas wells in the Chacahoula area of Terrebonne Parish. Terra Resources, Inc. ("Terra") acquired an interest in this agreement from FEC and became the operator of the wells. Two other companies, American Fluorite and Peninsula Resources, signed the agreement as non-operators. This lawsuit was precipitated by American Fluorite's and Peninsula Resources' failure to pay Terra their share of operating costs.
The plaintiff, Terra, originally filed this lawsuit against the defendant, FEC, demanding that FEC pay them American Fluorite's and Peninsula Resources' share of costs for the drilling and completion of the two wells as allegedly guaranteed by FEC in letter agreements with Terra. The defendant filed exceptions of prematurity, vagueness and non-joinder of necessary parties. At the hearing on these exceptions, two letter agreements between FEC and Terra, dated February 17, 1982 and February 19, 1982, were introduced into evidence. (See Appendix following this opinion). On each of these letters, an addendum dated February 26, 1982 was added by FEC which stated that Terra was required to use "all legal means" before collecting from FEC the monies owed by American Fluorite and Peninsula Resources.
The trial judge maintained FEC's exception of prematurity and dismissed plaintiff's suit, finding that the agreements did not obligate FEC to pay the accounts of American and Peninsula until Terra had obtained a judgment against said companies which could not be collected. the trial judge held that these agreements were unambiguous and allowed no evidence as to the parties' intentions at the time of execution. According to the trial judge, the addendum was sufficient in itself to prove that plaintiff's suit was premature.
Terra appealed that decision and in 465 So.2d 127 (La.App. 4th Cir. 1985), this court reversed the decision of the trial court and ruled that the addendum to the letter agreements requiring that Terra use "all legal means" before collecting from FEC was ambiguous and could not alone support the exception. This case was then remanded to the trial court for further proceedings to inquire as to the parties' intentions and the circumstances at the time of the execution of the letter agreements.
On remand, the trial judge again maintained FEC's exception of prematurity finding that because paragraph two of the letter agreements was in conflict with the addendum, the addendum was a counter-offer and the acceptance of this counter-offer superseded paragraph two of the letter. The judge further stated his finding that the addendum contemplated an uncollectable judgment by Terra against its debtors before calling on FEC as its surety. Terra appeals this most recent maintaining of FEC's prematurity exception.
At trial on remand defendant simply offered the addendum in evidence and rested. The burden of proof was on the exceptor. C.C.P. art. 930; Waggoner v. American Bank and Trust Co., 423 So.2d 794 (La.App. 4th Cir. 1982). Defendant failed to carry its burden when it rested on the same evidence this court already held was insufficient.
After the defense rested its case, plaintiff moved for a judgment overruling the exception which the trial court erroneously denied. The trial court's ruling that the evidence offered by defendant was sufficient to support the exception of prematurity was in conflict with this court's prior holding.
For these reasons, we reverse the judgment of the trial court and overrule the exception of prematurity. This case can proceed to trial without requiring plaintiff first to file suits against American and Peninsula.
REVERSED.