Estate of Riggs v. Way-Jo, LLC

Full title: ESTATE OF ROBERT E. RIGGS v. WAY-JO, L.L.C SARAH M. KENT v. THE SUCESSION…

Court: STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Dec 28, 2012

2011 CA 1651 (La. Ct. App. Dec. 28, 2012)

Opinion

2011 CA 1651 2011 CA 1652

12-28-2012

ESTATE OF ROBERT E. RIGGS v. WAY-JO, L.L.C SARAH M. KENT v. THE SUCESSION OF ROBERT E. RIGGS AND WAY-JO, L.L.C.

John I. Feduccia Hammond, Louisiana Michael A. Patterson Baton Rouge, Louisiana Counsel for Plaintiff-Appellant Estate of Robert E. Riggs Rodney C. Cashe Hammond, Louisiana Peter B. Sloss Timothy D. DePaula Gary J. Gambell New Orleans, Louisiana Chet G. Boudreaux Baton Rouge, Louisiana Robert J. Carter Greensburg, Louisiana Counsel for Defendants-Appellants, Way-Jo, L.L.C., John Bankston and Wayne L. Hagan Counsel for Intervenors-Appellees, Anthony Cheramie and Gail Terrebonne Counsel for Intervenors-Appellees, Luora and Samuel Arthur, and Plaintiff-Appellee, Sarah M. Kent

KUHN

NOT DESIGNATED FOR PUBLICATION

ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT

NUMBER 19,728 C/W 20,714, DIVISION "H", PARISH OF ST. HELENA

STATE OF LOUISIANA

HONORABLE ZORRAINE M. WAGUESPACK, JUDGE

John I. Feduccia
Hammond, Louisiana
Michael A. Patterson
Baton Rouge, Louisiana
Counsel for Plaintiff-Appellant
Estate of Robert E. Riggs
Rodney C. Cashe
Hammond, Louisiana
Peter B. Sloss
Timothy D. DePaula
Gary J. Gambell
New Orleans, Louisiana
Chet G. Boudreaux
Baton Rouge, Louisiana
Robert J. Carter
Greensburg, Louisiana
Counsel for Defendants-Appellants,
Way-Jo, L.L.C., John Bankston and
Wayne L. Hagan
Counsel for Intervenors-Appellees,
Anthony Cheramie and Gail Terrebonne
Counsel for Intervenors-Appellees,
Luora and Samuel Arthur, and
Plaintiff-Appellee, Sarah M. Kent

BEFORE: WHIPPLE, KUHN, GUIDRY, PETTIGREW, AND GAIDRY JJ.

Disposition: REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

KUHN, J.

These consolidated appeals arise from a series of conveyances involving immovable property located in Greensburg, Louisiana, and the related mineral rights. For the following reasons, we reverse in part and affirm in part.

PROCEDURAL AND FACTUAL BACKGROUND

At some point during December 1998 or January 1999, Robert E. Riggs (Riggs) suffered a stroke. During this period, Riggs made several visits to North Oaks Medical Center (North Oaks) in Hammond, Louisiana. The evidence indicates that during the months immediately after his stroke, Riggs sometimes had difficulty walking, required assistance performing some tasks, and had difficulty writing due to tremors. Although the evidence was conflicting as to the extent of his physical difficulties, it was undisputed that he remained mentally competent to handle his affairs at all times. Riggs was a bachelor and had no children to care for him. However, Harvey Anthony (Anthony), who was both a friend and former employee of Riggs, acted as one of his part-time caretakers. On February 2, 1999, Riggs executed a last will and testament naming Anthony as his sole legatee and executor of his estate.

Due to difficult financial circumstances Riggs was experiencing in early 1999, including an Internal Revenue Service lien, he offered to sell a large tract of immovable property he owned in Greensburg, Louisiana (the Greensburg property) to John Bankston (Bankston), who had been a friend of Riggs since childhood, a period of almost fifty years. Riggs specified a price of $600.00 per acre for the property, the total acreage of which was undetermined, but believed to be 331 acres, more or less. The final purchase price was $198,600.00. At the time of his offer to Bankston, Riggs was receiving oil royalties from the Greensburg property, and he indicated he wished to reserve the mineral rights related to the property. According to Bankston, Riggs originally told him he would get the mineral rights to the property after Riggs' death. Some testimony suggests that Riggs later indicated he wanted his reservation of the mineral rights to extend for twelve months after his death.

Because he lacked sufficient funds, Bankston asked his friend, Wayne Hagan (Hagan), to help finance the purchase of the Greensburg property. Thereafter, the two men formed Way-Jo, L.L.C., with themselves as members, for the purpose of purchasing the property. A purchase agreement bearing what purported to be the parties' signatures was prepared on February 1, 1999, and accepted by Riggs on February 2. Subsequently, an act of sale was prepared by Ronny Champlin (Champlin), an attorney chosen by Hagan. On February 22, 1999, the sale of the Greensburg property was executed at a closing held at Riggs' home.

The circumstances surrounding the closing are fiercely disputed in several respects. However, all parties agree that Riggs objected to the language of the mineral reservation contained in the act of sale prepared by Champlin, which stated:

SELLER HEREIN SPECIFICALLY TRANSFERS AND CONVEYS UNTO PURCHASER ALL MINERALS AND MINERAL RIGHTS EXCEPT FOR THE ROYALTIES PRESENTLY BEING PAID TO SELLER, WHICH ROYALTIES ARE HEREBY RESERVED UNTIL TWELVE (12) MONTHS AFTER SELLERS [SIC] DEATH. AFTER THE LAPSE OF SAID TIME, ALL ROYALTIES SHALL BE PAID TO PURCHASER OR ITS SUCCESSORS AND ASSIGNS.

After consultation, handwritten changes were made to the typed language by striking through certain words and changing the word "transfers" to "reserves." Following these revisions, the provision read:

SELLER HEREIN SPECIFICALLY TRANSFERS Reserves AND CONVEYS UNTO PURCHASER ALL MINERALS AND MINERAL RIGHTS EXCEPT FOR THE ROYALTIES PRESENTLY BEING PAID TO SELLER, WHICH ROYALTIES ARE HEREBY RESERVED UNTIL TWELVE (12) MONTHS AFTER SELLERS [SIC] DEATH. AFTER THE LAPSE OF SAID TIME, ALL ROYALTIES SHALL BE PAID TO PURCH\SER OR ITS SUCCESSORS AND ASSIGNS.

The handwritten initials of Riggs, Bankston and Hagan appear next to the changes. Upon completion of these revisions, it is undisputed that Riggs personally signed an act of sale conveying the Greensburg property to Way-Jo. Moreover, the sale proceeds subsequently were disbursed to Riggs' creditors in accordance with his wishes.

Two days after the closing, on February 24, 1999, an "Act of Cash Sale" in authentic form transferring the Greensburg property from Riggs to Way-Jo was recorded in the conveyance records of the St. Helena Parish Clerk of Court. The document included the signatures of Riggs (as seller), Bankston and Hagan, on behalf of Way-Jo (as buyer), and Champlin (as notary public).

The recorded act of sale also included the signatures of JoAnn Bernard (Bernard) and as witnesses. Bernard was a friend of Riggs, as well as his realtor in prior transactions. With respect to the sale of the Greensburg property, she acted as a dual agent on behalf of Riggs and Way-Jo. At Bankston's request, she prepared the purchase agreement for the sale of the property after discussing it with Riggs. According to her trial testimony, Riggs originally intended to reserve the mineral rights on the property only until his death, but he decided, at her suggestion, to reserve them until twelve months thereafter in order to aid in the settlement of his estate.

Prior to Riggs' death in 2006, Way-Jo sold the surface rights to approximately 37.52 acres of the Greensburg property to Samuel and Luora Arthur ("the Arthurs") in five separate sales that occurred between July 2, 2002 and December 31, 2003.¹ On January 27, 2003, Way-Jo sold 50 acres of the Greensburg property to Anthony Cheramie and Gail Terrebonne ("the Cheramies") for a purchase price of $65,000.00. On April 21, 2003, Way-Jo sold 33.93 acres of the Greensburg property to Sarah Kent (Kent) for a purchase price of $42,412.50. Since Riggs was alive at the time of each of these sales, his mineral servitude on the Greensburg property remained in existence. However, in each of the respective acts of sale to the Arthurs, Cheramies, and Kent (collectively "the interveners"), Way-Jo included language attempting to reserve a revisionary mineral interest in the property being sold upon the extinguishment of Riggs' outstanding mineral servitude.

1 On July 2, 2002, the Arthurs purchased 6.97 acres for $10,803.50; on December 23, 2002, they purchased 7.15 acres for $8,196.50; on April 4, 2003, they purchased 8.75 acres for $12,687.50; on June 20, 2003, they purchased 10 acres for $14,000.00; and on December 31, 2003, they purchased 4.65 acres for $4,417.50.

Riggs continued to receive all mineral royalties from the Greensburg property until his death in 2006. Following his death on April 3, 2006, his February 2, 1999 will was probated, and Anthony was recognized as his testamentary executor and sole legatee. Anthony was sent into possession of the succession property and began receiving the mineral royalties from the Greensburg property, which he stated ranged from approximately $15,000.00 to $25,000.00 per month.

Almost a year after Riggs' death, Anthony was contacted by Bankston concerning the mineral interests to the Greensburg property. Anthony disputed Way-Jo's right to the mineral interests and consulted an attorney, who advised Anthony that he should obtain a copy of the act of sale recorded in the clerk of court's office. Anthony claims that upon doing so, he learned for the first time that the recorded act of sale limited Riggs' mineral reservation to twelve months after his death, rather than being an unlimited reservation, as he asserts Riggs intended.

On March 28, 2007, Anthony, as executor of the Estate of Robert E. Riggs (the Estate), filed suit against Way-Jo seeking reformation of the sale from Riggs to Way-Jo. It was alleged therein that, although Riggs "executed an Act of Sale of the property" on February 22, 1999, the handwritten revisions made by the purchaser to the act of sale did not accurately reflect Riggs' intent. Specifically, the petition alleged that while the revisions on the recorded act of sale reserved the mineral rights to Riggs until twelve months after his death, Riggs actually intended to reserve the mineral rights without any time limitation. The Estate requested that the sale be corrected and reformed to reflect Riggs' intent that the mineral rights be reserved to himself and his heirs without reservation.

In its first amending petition filed on July 25, 2008, the Estate asserted that Way-Jo and its agent, Bernard, misled Riggs into signing the act of sale by fraudulently misrepresenting and suppressing the truth as to the effect of the revisions made to the mineral reservation included in the act of sale. On that basis, the Estate requested nullification of those provisions purporting to transfer the mineral interest in the property to Way-Jo. Way-Jo filed an exception of prescription to the Estate's action to nullify those provisions of the sale. However, the trial court ruled that the exception was moot as a result of the filing, subsequent to the exception of prescription, of the Estate's second amending petition restating its claims.

On November 21, 2008, the Estate filed a second amending petition in which it entirely restated its claim. In the second amending petition, which was filed more than eighteen months after the original petition, the Estate alleged for the first time that the purported signatures of Riggs on both the February 1999 purchase agreement and the February 22, 1999 act of sale were forgeries and constituted a fraud upon Riggs.² The Estate sought a declaration that the February 22, 1999 act of sale between Riggs and Way-Jo was an absolute nullity entitling the Estate to rescission of the sale on the grounds of fraud and recognition that the Estate was the owner of all mineral rights related to the Greensburg property. The Estate also sought damages and attorney fees. Additionally, Bankston and Hagan were added as defendants in the Estate's suit.

2 Way-Jo contends that the Estate's second amending petition is not part of the appellate record. However, while the petition originally was not included in the appellate record, the record was supplemented to include this pleading.

Subsequent to the Estate's suit, the Arthurs filed an intervention therein seeking to be recognized as the owners of the mineral rights related to those portions of the Greensburg property they purchased from Way-Jo. Both the Estate and Way-Jo were named as defendants in the intervention. In an amended answer to the petition of intervention, Way-Jo alleged that there was a mutual error between the parties that resulted in the nullity of its sales to the Arthurs. Additionally, Way-Jo filed a reconventional demand against the Arthurs on that same basis, seeking to annul the sales to them. Specifically, Way-Jo alleged that it was entitled to judgment annulling the sales in the event that the Arthurs obtained judgment granting them the mineral rights, because the sales of the property were negotiated with the full knowledge and understanding of all parties that Way-Jo would reserve a reversionary interest in the mineral rights related to the property, subject to the prior reservation in favor of Riggs.

The Cheramies also filed an intervention naming the Estate and Way-Jo as defendants. They sought recognition as the owners of all mineral rights related to the property they purchased from Way-Jo. They alleged that the act of sale that transferred the property to them did not clearly reserve any mineral rights to Way-Jo.

Thereafter, the Arthurs and the Cheramies each filed a motion for summary judgment in which they sought recognition as the owners of the mineral rights related to their respective property, to the exclusion of Way-Jo. In opposition to the motions for summary judgment, Way-Jo argued that the respective sales to the Arthurs and Cheramies were null due to mutual error as to the mineral rights. In response, the Arthurs and the Cheramies filed an exception of prescription directed to Way-Jo's claim of nullity, which was referred to the merits.

In lieu of a hearing, the parties submitted the motions for summary judgment to the trial court on the pleadings, exhibits and memoranda filed. After consideration, the trial court rendered summary judgment conditionally in favor of the Arthurs and Cheramies. The trial court held that in the event the validity of the sale from Riggs to Way-Jo was upheld on the primary demand, the Arthurs and Cheramies were the owners of the mineral rights related to the respective tracts of immovable property they had purchased from Way-Jo.³

3 After the denial of its motion for new trial, Way-Jo took an appeal from the summary judgment rendered by the trial court. However, this Court dismissed the appeal on the basis that it was a conditional judgment not subject to appeal. See Estate of Robert Riggs v. Way-Jo, LLC, 09-0297 (La. App. 1st Cir. 9/1/09) (unpublished).

Following rendition of this summary judgment, a separate suit was filed against the Estate and Way-Jo by Kent in which she requested a declaratory judgment that she was the owner of all mineral rights related to the 33.93 acres of the Greensburg property she purchased from Way-Jo. Kent's suit was consolidated for all purposes with the suit filed by the Estate.

A bench trial of the consolidated suits was held on February 3 and September 24, 2010. As previously noted, contradictory evidence was presented as to what occurred at the closing on the Greensburg property. The evidence presented by the Estate included testimony from Anthony and a handwriting expert indicating the purported signatures of Riggs on the purchase agreement and the act of sale recorded on February 24, 1999, were not Riggs' genuine signatures. Anthony admitted that Riggs did sign an act of sale, but maintained that it was not the same one that was recorded in the public records. Anthony also claimed that Champlin, the notary public, was not present at the closing and did not notarize the act of sale at that time. In opposition, Bankston, Hagan, Bernard and Champlin each testified that the act of sale recorded in the public records was signed by Riggs personally at the time of the closing, after the typed language in the document was altered to reflect his stated intention to reserve all mineral rights for twelve months after his death.

At the conclusion of trial, there was discussion between the trial court and counsel regarding outstanding exceptions. It appears the trial court sustained the exception of prescription filed by the Arthurs and the Cheramies as to Way-Jo's claim of nullity due to mutual error at that time, although no written judgment was ever rendered on the exceptions. In any event, the trial court took the matter under advisement on the merits.

Subsequently, on January 5, 2011, the trial court rendered written judgment in favor of the Estate on the primary demand, declaring that the February 22, 1999 sale of the Greensburg property from Riggs to Way-Jo was a nullity because the recorded act of sale was not signed by Riggs.⁴ However, the trial court denied the Estate's request for attorney fees on the specific basis that no fraud had occurred. In its reasons for judgment, the trial court concluded it was possible that, in the confusion of the closing, Champlin notarized a copy of the act of sale, apparently by mistake, that included a signature of Riggs that was not genuine. The trial court offered no explanation of how the non-authentic signature came to be on the document, who put it there, or the motive for doing so. Nor was any copy of the act of sale, other than the one recorded by Champlin in the public records, ever produced.

4 In view of this ruling, the trial court's prior summary judgment as to the Cheramies' and Arthurs' claims to ownership of the mineral rights is irrelevant to the instant appeals, since that summary judgment was specifically conditioned upon the trial court not nullifying the sale from Riggs to Way-Jo.

Additionally, the trial court ruled in favor of the Arthurs, the Cheramies, and Kent on the interventions and suit for declaratory judgment. In particular, the trial court concluded that even though the sale from Riggs to Way-Jo was a nullity, the respective sales from Way-Jo to the intervenors were valid under the public records doctrine. The trial court also concluded that since Riggs' mineral reservation remained viable at the time that Way-Jo attempted to reserve them, the attempted reservations by Way-Jo in the various sales to the intervenors were invalid under La. R.S. 31:76. Applying this reasoning, the court held that because the purchasers from Way-Jo were the current owners of the immovable property, the mineral rights vested in them. Finally, the trial court held that the 80 acres of the Greensburg property that had not been sold by Way-Jo belonged to the Estate.

Both the Estate and Way-Jo filed motions for new trial, which were denied by the trial court. Thereafter, the Estate and Way-Jo each took a suspensive appeal from the trial court's judgment. In its appeal, Way-Jo argues that the trial court erred: (1) in failing to dismiss the Estate's claims against Way-Jo as prescribed; (2) in awarding judgment in favor of the Estate when no fraud was found, given that the Estate stipulated at a pre-trial hearing that its only claim against Way-Jo was for fraud; (3) in finding that the Estate's evidence was sufficient to meet the burden of strong and convincing proof necessary to overturn an authentic act; (4) in nullifying the February 22, 1999 sale in its entirety when it was undisputed that Riggs intended to sell the surface rights of the land to Way-Jo; and (5) in failing to nullify the sales from Way-Jo to the Arthurs, Cheramies and Kent due to mutual error concerning the mineral reservations contained in those sales. In its appeal, the Estate contends that the trial court committed legal error: (1) in failing to restore it to the position that existed prior to the invalid sale of the Greensburg property as required by La. C.C. art. 2033; (2) in misapplying the public records doctrine and La. R.S. 31:76 to award the Arthurs, Cheramies, and Kent the mineral rights related to the portions of the Greensburg property they purchased from Way-Jo; (3) in not finding that fraud occurred despite the court's conclusion that the purported signature of Riggs on the recorded act of sale was forged; and (4) in denying the Estate's request for attorney fees.

We will first consider the assignments of error raised by Way-Jo that are related to the validity of the sale of the Greensburg property by Riggs to Way-Jo, because, in the event that Way-Jo's contentions have merit, the assignments of error raised by the Estate will be rendered moot.

PEREMPTORY EXCEPTION RAISING PRESCRIPTION

On appeal, Way-Jo contends that the trial court erred in failing to sustain its exception of prescription to the Estate's claims. Specifically, Way-Jo argues that the irregularities at the closing that are alleged to have occurred by the Estate formed a basis for a claim of relative nullity, which is subject to a five-year prescriptive period under La. C.C. art. 2032.⁵ Way-Jo further asserts that since the alleged irregularities should have been obvious to Riggs and Anthony, who were present at the closing, prescription commenced in this case when the act of sale was recorded on February 4, 1999. Thus, it maintains the Estate's suit was prescribed when it was filed more than eight years later, on March 28, 2007.

5 This provision states, in pertinent part, that:

Action of annulment of a relatively null contract must be brought within five years from the time the ground for nullity either ceased, as in the case of incapacity or duress, or was discovered, as in the case of error or fraud.
Nullity may be raised at any time as a defense against an action on the contract, even after the action for annulment has prescribed.

Way-Jo's contentions lack merit. The trial court concluded that Way-Jo's exception, which was directed to the Estate's first amending petition, was rendered moot by the filing of the Estate's second amending petition, except as to the claim of fraud raised in the latter petition. In fact, the Estate conceded at the hearing on the exception that any causes of action asserted in its original and first amending petition were rendered moot by the total restatement of its claim in its second amending petition and that the fraud claim asserted therein based on the allegation of forgery was the only cause of action it was continuing to pursue. Furthermore, the allegation of forgery in the second amending petition raised an absolute nullity, regardless of whether or not the other allegations in the Estates' original and first amending petitions raised only issues of relative nullity as asserted by Way-Jo. Thus, "since forgery is in derogation of public order and good morals ... and can never be prescribed against," the Estate's claim based on the alleged forgery of Riggs' signature was not prescribed when the Estate's suit was filed. See Pitre v. Peltier, 227 La. 478, 488, 79 So.2d 746, 749 (1955); see also La. C.C. arts. 2030 & 2032; Moore v. Shell Oil Company, 228 So.2d 205, 209-10 (La. App. 3d Cir. 1969), writ refused, 255 La. 278, 230 So.2d 587 (1970). Accordingly, the trial court did not err in overruling Way-Jo's peremptory exception raising the objection of prescription.

This assignment of error lacks merit.

VALIDITY OF SALE FROM RIGGS TO WAY-JO

Way-Jo contends on appeal that the trial court erred in rendering judgment in favor of the Estate when the Estate admitted prior to trial that the only cause of action it was pursuing was for fraud, and the trial court found no fraud occurred. Additionally, Way-Jo argues that the trial court erred in finding the evidence presented by the Estate sufficient to meet the burden of strong and convincing proof necessary to overturn the authentic act of sale executed by the parties on February 22, 1999.

The law accords a high degree of sanctity to authentic acts. DiVincenti v. McIntyre, 611 So.2d 140, 141 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1264 (La. 1993). In fact, the rationale for requiring an authentic act in some instances "is to insure the validity of a signature on a document and that the person whose name appears thereon is the person who actually signed the document; the notary and witnesses attest to seeing the party sign the document." McGuire v. Kelly, 10-0562 (La. App. 1st Cir. 1/30/12) (unpublished), writs denied, 12-0685, 12-0702 (La. p 5/4/12), 88 So.3d 465, 467; Zamjahn v. Zamjahn, 02-871 (La. App. 5th Cir. 1/28/03), 839 So.2d 309, 315, writ denied. 03-0574 (La. 4/25/03), 842 So.2d 410. Under La. C.C. art. 1835, "[a]n authentic act constitutes full proof of the agreement it contains, as against the parties, their heirs, and successors...." The long-standing jurisprudence of this state, as explained by the Supreme Court over a century ago in Succession of Tete, 1 La. Ann. 95, 96 (1852), provides that:

The effect given by law to authentic acts, rests upon the presumption, that a public officer, exercising a high and important trust, under the solemnity of an oath, has done his duty when acting within the scope of his authority. Selected for their character, capacity and probity, as notaries are presumed to be, the law attaches full credit to their official acts. This prerogative is established in the interest of public order, to maintain peace among men, and to prevent contestations concerning the proof or evidence of their conventions.

Thus, because an authentic act is clothed with a presumption of genuineness, the party attacking its authenticity bears the burden of proving its invalidity. Moreover, in order to overcome the presumption of genuineness, the attacking party must meet a higher burden of proof than a mere preponderance of the evidence. See DiVincenti, 611 So.2d at 141. Because an authentic act is presumed to be valid, regardless of whether it is attacked on the grounds that an included signature is a forgery or that the act was not executed before a notary and two witnesses, convincing proof must be presented to invalidate the act. Eymard v. Terrebonne, 560 So.2d 887, 889 (La. App. 1st Cir.), writ denied, 567 So.2d 614 (La. 1990). To prove a matter by convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is much more probable than its nonexistence. See In Re Succession of Fisher, 06-2493 (La. App. 1st Cir. 9/19/07), 970 So.2d 1048, 1054.

In the instant case, the trial court's reasons as a whole demonstrate that, in finding that Riggs did not sign the act of sale, the court committed legal error in failing to accord the authentic act of sale the presumption of genuineness that it was due. In the trial court's detailed reasons for judgment, the court failed to even recognize the critical fact that the sale was in authentic form. Further, the trial court likewise failed to recognize the presumption of genuineness that attached to the act of sale due to its authentic form or the heightened burden of proof necessary to overcome the presumption of genuineness in order to invalidate the act of sale.

Although suggestive, the failure of the trial court to recognize the heightened burden of proof required to invalidate the act between Riggs and Way-Jo would in itself be insufficient to establish legal error. However, even more significantly, the trial court's reasons for judgment demonstrate not only that the court failed to recognize the heightened burden of proof that was required, but the court also failed to apply that burden of proof in nullifying the sale. The disputed act of sale contains an attestation clause signed and notarized by Champlin stating that the document was signed by the parties "in the presence of me Notary, and the following competent witnesses who have signed in the presence of me, Notary." However, in rejecting the Estate's claim that the defendants committed fraud by forging Riggs' signature on the act of sale, the trial court reasoned that "it is entirely possible that the notary [Champlin] like the other witnesses saw Mr. Riggs sign a document but another document was presented to the notary to be notarized."

Thus, in finding that it was "entirely possible" that Champlin had, in effect, mistakenly notarized the wrong document, the trial court totally disregarded the presumption of genuineness that it should have accorded to the attestation contained in the notarized document to the effect that Champlin witnessed Riggs signing that particular document. Moreover, not only did the trial court ignore this presumption, it reached a factual conclusion that Champlin notarized an act of sale that Riggs did not sign based on a possibility, rather than a probability, that Champlin saw Riggs sign one document, but then somehow mistakenly notarized an entirely different document that was not signed by Riggs.

Furthermore, the trial court failed to account for how, why, or in what manner someone other than Riggs happened to sign Riggs' name to the document. No one present at the closing suggested or admitted to signing Riggs' name to the document, either intentionally or by mistake. It is obvious from the trial court's reasons as a whole that it failed to apply the proper burden of proof by convincing evidence in invalidating the act of sale.

Generally, an appellate court may not set aside a trial court's findings of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). However, if a legal error by the trial court interdicts the fact-finding process, the manifest error standard of review is no longer applicable, and, if the record is otherwise complete, the appellate court should conduct an independent de novo review of the record. Chambers v. Village of Moreauville, 11-898 (La. 1/24/12), 85 So.3d 593, 597. A legal error occurs when a trial court applies incorrect principles of law. Such errors are prejudicial when they materially affect the outcome of a matter and deprive a party of substantial rights. Chambers, 85 So.3d at 597. The failure of a trial court to apply a heightened burden of proof when required by law to do so is a prejudicial legal error that vitiates a trial court's factual findings, because the error skews the trial court's findings. See In re Succession of Jones, 08-1088 (La. App. 3d Cir. 3/4/09), 6 So.3d 331, 336. Accordingly, because the trial court committed legal error in not applying the heightened burden of proof applicable in this case, we will now conduct a de novo review of this matter.

As mandated by La. C.C. art. 1835, which provides that an authentic act constitutes "full proof of the agreement it contains, we begin our review with the presumption that each of the signatures and initials on the disputed authentic act of sale, including those of Riggs, are genuine, and that the attestation therein that the document was signed by the parties and the witnesses in the presence of the notary, Champlin, is correct. We must then review the record to determine whether it contains convincing evidence that overcomes this presumption of genuineness.

In order to meet its burden of proof, the Estate relied heavily on the following evidence: Anthony's testimony as to what occurred at the closing; the testimony of Riggs' family physician and Katie Shields (Shields), Riggs' part-time caregiver, as to his physical infirmities; the fact that Riggs' signature on his February 2, 1999 will bears no similarity to the purported signatures of Riggs on either the purchase agreement or the February 22, 1999 act of sale; and the testimony of a handwriting expert whose testimony indicated that Riggs' signatures and initials on the purchase agreement and act of sale were not genuine because they were not made by the same person who signed Riggs' will and certain medical forms related to his medical treatment. We must determine whether this evidence, together with the other evidence in the record, meets the Estate's heavy burden of proving the invalidity of the act of sale between Riggs and Way-Jo by convincing evidence.

At trial, Anthony testified that Riggs' purported signature on the 1999 act of sale recorded in the public records is not Riggs' signature. Anthony maintained this position despite the singular fact that he appeared as a witness on the very act of sale he was attacking, and he admitted to the authenticity of his own signature on that document. In explanation of this dichotomy, Anthony testified that while he saw Riggs sign an act of sale at the February 22 closing, the act of sale recorded by Champlin was not the same document that he saw Riggs sign. Anthony stated that he signed three or four copies of the act of sale at the closing. According to Anthony, he did not pay attention after Riggs signed the first document as various documents were being passed around between the parties and witnesses in a disorderly fashion. He maintains that he merely signed what he was given to sign. Essentially, he claims that he signed a document as a witness, although he did not actually see Riggs sign it, which is contrary to the declaration in the authentic act that the document was signed by the parties in the presence of the witnesses.

Anthony also testified emphatically that Champlin was not present at the closing and did not notarize the act of sale signed by Riggs at that time. Additionally, he asserted that it was Riggs' intent to reserve all mineral rights to the Greensburg property without any time limitation. He testified that after Riggs objected to the language of the mineral reservation prepared by Champlin, the language included in the recorded act of sale that limited the mineral reservation to twelve months after Riggs' death was struck from the document that Riggs signed by someone drawing a line through that specific language. Thus, he testified that the act of sale signed by Riggs reserved his mineral rights without limitation, since the typed language "until twelve (12) months after sellers death" was part of the language struck through by hand after Riggs objected to the language of the original mineral reservation.

In support of its position, the Estate also presented testimony from Anthony and other witnesses indicating that Riggs experienced physical weakness and tremors after his stroke that made it difficult for him to write and his handwriting shaky, whereas the signatures on the purchase agreement and recorded act of sale are clearly legible and do not appear shaky. Shields, a part-time caretaker, testified that Riggs' condition was so bad that he was unable to raise his hand to write. However, while the evidence indicates that Riggs' handwriting was shaky at times after his stroke, Shields' testimony appears exaggerated. In fact, it is contradicted by Anthony's own admission that he observed Riggs sign an act of sale at the closing and that Riggs continued until the time of his death to sign checks drawn on his accounts. Other witnesses also testified that they saw Riggs sign documents in the months after his stroke.

The Estate also presented the testimony of Dr. Ted Hudspeth, Riggs' family physician, on the issue of Riggs' medical condition and physical restrictions. However, while Dr. Hudspeth testified as to symptoms stroke patients generally experience, including difficulty in writing, and the fact that Riggs never completely got over all his symptoms, his overall testimony reflects that he had no independent recollection of the specific symptoms Riggs experienced, other than some difficulty in walking. Rather, he indicated his testimony pertained to stroke patients in general. Moreover, Dr. Hudspeth admitted that a stroke patient may have a good day on which he could accomplish more than he was able to on a bad day. Thus, he conceded the possibility that a stroke patient could have difficulty in signing his name one day, but be able to sign it well on another day. However, he believed that if a patient had suffered a major stroke, it was unlikely he would experience a dramatic improvement in his ability to sign his name during the course of one day.

The Estate also presented the testimony of Dorothy Baham (Baham), a legal secretary employed by the late Jesse LeGarde, with respect to the will that Riggs executed at LeGarde's office on February 2, 1999. Baham was one of the witnesses to the will and saw Riggs sign it. She stated that Riggs had difficulty signing his name, and it took him several minutes to do so. However, she acknowledged Riggs told her he had good days and bad days. An examination of Riggs' signature on the will, which is in authentic form, reveals a signature that is extremely shaky and barely legible. The signature bears no similarity to Riggs' signature on the February 22, 1999 act of sale, which appears relatively smooth.

Finally, the Estate presented the testimony of Mary Ann Sherry (Sherry), who was accepted by the trial court as a handwriting expert.⁶ According to Sherry, the Estate provided her with Riggs' will and several medical records from North Oaks, dated from December 22, 1998 to April 13, 1999, that purported to bear Riggs' genuine signatures for comparison with the signatures of Riggs on the purchase agreement and the February 22, 1999 act of sale. Based on her comparisons, Sherry concluded it was highly probable that the same person signed Riggs' name on the purchase agreement and the act of sale. However, she opined that neither those signatures, nor the initials made beside the revisions on the act of sale, were made by the same person who signed the will and the medical records. Although Sherry indicated her conclusion was based on other factors in addition to the shakiness of the handwriting on the will and the medical records, she admitted that tremors in a person's handwriting can come and go.

6 The issue of whether or not there is an objective, scientific basis underlying handwriting analysis is a matter of dispute. Upon considering this issue, various courts have reached different conclusions. Compare, United States v. Saelee, 162 F.Supp.2d 1097 (D. Alaska 2001) (finding expert handwriting testimony inadmissible), with U.S. v. Yagman, (CD. Cal. May 22, 2007) (unpublished) (finding expert handwriting testimony admissible).

In opposition to Anthony's testimony that Riggs did not sign the act of sale recorded in the public records, Bankston, Hagan, Bernard and Champlin each testified that they personally observed Riggs sign the act of sale that was subsequently recorded. Each of these witnesses also testified, contrary to Anthony, that Champlin was present at the closing. Further, in contrast to Anthony's testimony, none of the other individuals present at the closing testified to multiple originals being passed around and signed in a chaotic fashion.

At the time of the closing, Champlin was a practicing attorney with approximately eighteen years of experience, who had conducted thousands of closings. Although he acknowledged that he brought multiple copies of the act of sale to the closing so that everyone could see it, he stated definitively that he notarized only one document that evening, which was the one subsequently recorded in the St. Helena Parish records. He further testified that he made handwritten revisions to only one act of sale, which was the one that Riggs initialed and Champlin notarized.

Thus, of all those present at the February 22 closing, Anthony stood alone in asserting that Riggs did not personally sign the recorded act of sale. In considering this conflicting testimony, it must be borne in mind that not only does Anthony's testimony conflict with that of everyone else present at the closing, it is also contradicted by his own action of signing the authentic act of a sale as a witness thereto. The Supreme Court has looked with such disfavor upon a person attacking an act that he signed as a witness that it has held that he is estopped from doing so. See W.F. Taylor Co. v. Sample, 122 La. 1016, 1019, 48 So. 439, 440 (1909); Reinach v. New Orleans Imp. Co., 50 La. Ann. 497, 23 So. 455, 456 (La. 1898). Similarly, we believe that Anthony was estopped in the instant case from contesting the validity of the authentic act of sale from Riggs to Way-Jo, since he signed that act as a witness.

Furthermore, even if Anthony was not estopped from attacking the act of sale, we find his self-serving testimony lacking in credibility under the overall circumstances. The recorded act of sale includes declarations both that Riggs "in the presence of the undersigned competent witnesses, personally came and appeared" and that the sale document was signed "by the parties [Riggs and Way-Jo] ... in the presence of [the] Notary, and the following competent witnesses who have signed in the presence of [the] Notary." Anthony admitted to signing the authentic act as one of those witnesses. Thus, Anthony's trial testimony is contradicted by the notarized declarations included in the authentic act itself. Moreover, his testimony is further contradicted by the testimony of everyone else present at the closing, each of whom testified that Riggs signed the authentic act.

Additionally, Anthony, who indicated that he was a longtime friend of Riggs and knew his signature, testified repeatedly and emphatically at trial that the signature on the recorded act of sale was not Riggs' signature. Yet, he offered no explanation as to why, in that case, he failed to raise any issue as to the authenticity of the signature until almost eighteen months after suit was filed.⁷ In fact, the Estate's original petition alleged that Riggs executed the recorded act of sale, and in its first amending petition it specifically alleged that Riggs signed the recorded document.

7 At a hearing on Way-Jo's exception of prescription, the Estate's attorney claimed that the Estate did not learn of the alleged forgery until a handwriting expert examined the signature on the recorded document. However, in making this claim, no reference was made to Anthony's self-professed familiarity with Riggs' signature, nor did Anthony himself offer any testimony in explanation of the delay in raising this issue, either at the hearing or at trial.

Anthony's credibility is further undermined by the fact that his testimony regarding Champlin's alleged absence from the closing is contradicted by the overwhelming weight of the evidence. All of the other individuals who Anthony admitted were present at the closing, as well as Champlin himself, testified that Champlin was present. Moreover, the act of sale itself contains a notarized attestation clause indicating that all of the signatures were written in the notary's presence on the date stated.

Basically, in order to accept the Estate's theory of what occurred at the closing, this Court would have to conclude that Bankston, Hagan, Bernard and Champlin all participated in some aspect of a conspiracy to deceive and defraud Riggs by misleading him as to the revisions made in the act of sale, destroying or secreting the act of sale Riggs signed, and recording in the public records a different act of sale containing his forged signature.⁸ However, we decline to do so, because the record lacks sufficient credible evidence to support the Estate's theory. Additionally, the theory ignores the close friendship that existed between Riggs and Bankston for most of their lives. Moreover, absolutely no suggestion was made as to why either Champlin or Bernard would engage in such a conspiracy at great risk to themselves and their professional reputations, especially since Bernard was also a personal friend of Riggs and the trial court acknowledged that Champlin has no financial interest in the transaction.

8 As previously noted, the trial court concluded that while Riggs' signature on the recorded act of sale was not genuine, no fraud occurred because an act of sale containing an inauthentic signature was, in some unknown manner, mistakenly notarized by Champlin, a highly experienced closing attorney, as being authentic. However, based on our de novo review, we do not believe the trial court's conclusions are consistent with either of the diametrically opposed versions of events presented by the evidence of the opposing parties.

Further, as to the testimony of Sherry, the handwriting expert, we note that it is well-settled in Louisiana that the trier-of-fact is not bound by the testimony of an expert, but that such testimony is to be weighed the same as any other evidence. The trier-of-fact may accept or reject, in whole or in part, the opinion expressed by an expert as to ultimate facts, based upon the other evidence admitted at trial. In re Interdiction of DeMarco, 09-1791 (La. App. 1st Cir. 4/7/10), 38 So.3d 417, 424-25. In the instant case, in evaluating Sherry's testimony, we find it significant that she was not given any samples of Riggs' pre-stroke signatures for comparison with the signatures affixed to the purchase agreement and act of sale. Nor do we find that the Estate sufficiently established the genuineness of the samples provided to Sherry from Riggs' North Oaks medical records.

The records in question consisted of consent-to-treatment forms purportedly signed by Riggs. To establish that they were genuine, Linda Manieri (Manieri), an employee of the insurance verification department at North Oaks, testified regarding the hospital protocol employees are required to follow in verifying the identity of a patient and witnessing him sign consent forms. Based on these procedures, Manieri was confident that a hospital employee had witnessed Riggs personally sign the consent forms after his identity was verified. However, she admitted that she had no personal knowledge as to the instances involving Riggs, nor did any hospital employee who actually witnessed Riggs personally sign the forms testify at trial. Given the heightened burden of proof applicable in this case, we find the Estate's evidence insufficient to establish the genuineness of the signatures on the consent forms. Thus, many of the samples used by Sherry in making her comparisons to the disputed signatures were improperly considered.

Further, our examination of the exhibits, as well as the testimony presented, showed that Riggs' handwriting varied considerably at different times following his stroke. Even the Estate's handwriting expert acknowledged that tremors in a person's handwriting can come and go. Furthermore, her testimony was consistent with Dr. Hudspeth's testimony that a stroke patient can have good days and bad days and that a patient's ability to sign his name can vary accordingly. According to Dr. Hudspeth, it was possible for a stroke patient who had difficulty signing his name one day to be able to sign it well on a different day. In fact, evidence was presented at trial that Riggs told a witness that he experienced good days and bad days following his strokes.

As an example of the variations in Riggs' signatures, we find particularly instructive a comparison of the signatures on two exhibits that the Estate offered into evidence at trial, i.e., a North Oaks consent form, dated December 22, 1998, and a general power of attorney executed by Riggs in authentic form on December 26, 1998. Although the Estate introduced both of these exhibits as bearing purportedly authentic signatures of Riggs, the two signatures offer little resemblance to one another. Thus, just as the style and appearance of Riggs' signatures on the purchase agreement and act of sale varied markedly from Riggs' signature on his will, so too did the signatures on the December 22 consent form and the December 26 general power of attorney, even though these two documents purportedly were signed by Riggs only four days apart.

Considering these circumstances, as well as our careful review of the entire record, we find that the Estate failed to present evidence sufficient to overcome the presumption of genuineness attached to the recorded act of sale from Riggs to Way-Jo. The evidence presented by the Estate does not meet the heightened burden of proof by convincing evidence that is required to invalidate the authentic act of sale. Based on the evidence presented, the Estate failed to establish either that the signature of Riggs on the February 22, 1999 act of sale was not genuine or that any fraud occurred in the execution of that document.

As noted, we have found Anthony's self-serving testimony to be less than credible. His testimony is contradicted, not only by the fact that he signed the act of sale as a witness, but also by the weight of the opposing testimony from Bankston, Hagan, Bernard and Champlin, who each testified that they observed Riggs sign the act of sale that was subsequently recorded in the public records and that Champlin was present at the closing. We are further impressed with the emphatic testimony of Champlin that he made handwritten revisions to only one act of sale, which was the one that Riggs signed and initialed and Champlin notarized, and that Champlin left the closing with that original document and later recorded it in the public records. But most importantly the language of the authentic act itself specifically provides that the sale was signed "by the parties ... in the presence of me Notary [Champlin], and the following competent witnesses [Bernard and Anthony] who have signed in the presence of me, Notary."

Further, although the Estate places great emphasis on the fact that Riggs' signature on his February 2, 1999 will is markedly dissimilar to the signatures of Riggs on either the purchase agreement or the February 22, 1999 act of sale, we believe the dissimilarities in the signatures are attributable to variations in Riggs' ability to sign his name that resulted from his changeable medical condition. Such a conclusion is consistent both with the medical evidence that it was possible for a stroke patient to experience wide variations in his ability to sign his name, and the fact that Riggs himself informed a witness that he had good days and bad days. Nor is our conclusion that the act of sale contains Riggs' genuine signature altered by the testimony of the Estate's handwriting expert, since her testimony is inconsistent with the overall weight of the evidence.

For the stated reasons, we find that the Estate failed to establish by convincing evidence that Riggs' signature on the recorded act of sale was not genuine. Accordingly, the Estate was not entitled to have that act of sale from Riggs to Way-Jo annulled on the basis of fraud. Therefore, that portion of the judgment of the trial court declaring the act of sale a nullity must be reversed and the Estate's suit must be dismissed.⁹

9 The February 22, 1999 sale of the Greensburg property by Riggs to Way-Jo was valid, the signature of Riggs on that document was genuine, and no fraud occurred. Therefore, we pretermit consideration of the assignments of error raised by the Estate in its appeal, since those assignments were premised on the alleged invalidity of the sale and the existence of fraud. For the same reason, it is unnecessary to consider Way-Jo's fourth assignment of error alleging, in the alternative, that the trial court erred in annulling the 1999 sale in its entirety, including the sale of the surface rights.

These assignments of error have merit.

CLAIMS OF INTERVENORS

In oral arguments before this Court, Way-Jo asserted that, contrary to the judgment of the trial court, the mineral reservations it included in the sales to the intervenors were valid and did not violate La. R.S. 31:76, because La. R.S. 31:3 provides that the parties are free to renounce or modify the provisions of the mineral code when doing so does not violate public policy. We agree.

Initially, we note that the trial court's rationale in concluding that the intervenors were the owners, not only of the surface rights to the property, but also of the mineral rights, is based on fundamental legal error. The trial court's ruling that the sale of the Greensburg property from Riggs to Way-Jo was a nullity logically should have resulted in a conclusion that since Way-Jo did not own the property, it could not convey ownership thereof to the intervenors. However, to the contrary, the trial court found that the subsequent sales of portions of the Greensburg property by Way-Jo were valid and conveyed ownership of that property to the intervenors. The trial court reached this conclusion through its misapplication of the public records doctrine. In its written reasons for judgment, the trial court explained its findings as follow:

Under the Public Records Doctrine, a third party who acquires an interest in immoveable property is protected from the effects of the nullity or dissolution of a contract that adversely effects his interest. ... Furthermore, there can be no actual owner of immoveable property other than the owner of record, at least insofar as third persons are concerned, [sic] [Blevins] v. Manufacture Record Pub. Co., 235 La. [708 105] So. 2nd 392 (1957)[.]
In this matter the intervenors were good faith purchasers and are entitled to the property they purchased.

****
The cash sale deed [from Riggs to Way-Jo] having been declared a nullity, the Court must determine the ownership of the property. Since the intervenors are protected by the Public Records Doctrine and have been declared the owners of their respective properties, the mineral rights attach to the property. [Emphasis added.]

The trial court's reasons reflect a basic misunderstanding of the nature of the public records doctrine.

The Louisiana Supreme Court has explained the essential nature of the public records doctrine, which expresses the public policy of this state that an interest in real estate must be recorded in order to affect third persons, as follows:

The public records doctrine has been described as a negative doctrine because it does not create rights, but, rather, denies the effect of certain rights unless they are recorded. In explaining the negative nature of the doctrine, this Court has stated that third persons are not allowed to rely on what is contained in the public records, but can rely on the absence from the public records of those interests that are required to be recorded. The primary focus of the public records doctrine is the protection of third persons against unrecorded interests.
... While a third party is entitled to rely on the absence from the public record of those interests that are required to be recorded, the public records doctrine does not provide that a third party may rely implicitly on what is shown in a recorded instrument, nor does it provide that a third party who relies on a recorded instrument can acquire good title from a vendor who does not have good title. ... Simply put, "the rule that what is not recorded is not effective does not mean that what is recorded is effective at all events, despite forgery or any other defect."¹⁰

Cimarex Energy Co. v. Mauboules, 09-1170, 09-1180, 09-1194 (La. 4/9/10), 40 So.3d 931, 944. (Citations omitted; emphasis added.)

10 Louisiana Civil Code article 3341, enacted by 2005 La. Acts, No. 169, §1, effective July 1, 2006, codified this concept that the mere fact that a document is recorded does not mean that it is valid or that the person with record title is in fact the owner. See Evans v. City of Baton Rouge, 10-1364 (La. App. 1st Cir. 2/14/11), 68 So.3d 576, 580 n.3.

In this case, the trial court concluded that Way-Jo conveyed ownership of the property to the intervenors by virtue of the public records doctrine, despite its finding that Way-Jo did not acquire ownership of the property through a valid sale. In so reasoning, the trial court fell into fundamental legal error and distorted the primary purpose of the public records doctrine, which is to protect third parties from unrecorded interests. The public records doctrine does not entitle a seller to convey property he does not own, not even if the intended purchaser is an innocent third party. See La. C.C. art. 2452; Cimarex Energy Co., 40 So.3d at 944.

Nevertheless, despite the trial court's flawed legal reasoning, its conclusion that Way-Jo actually conveyed ownership of the property's surface rights to the intervenors was correct, albeit on an entirely different basis than the one stated by the court. As previously discussed, based on our de novo review of the record, we conclude that the sale of the Greensburg property from Riggs to Way-Jo was valid, since the Estate failed to meet the burden of proof necessary to invalidate that authentic act of sale. Consequently, Way-Jo was the owner of the property and was entitled to convey ownership of its surface rights to the intervenors.

Thus, having determined that the sales conveyed the surface rights to the intervenors, the next issue presented is ownership of the mineral rights to the property. The trial court concluded that the mineral reservations in favor of Way-Jo, included in the sales to the intervenors at a time when Riggs was still alive, violated La. R.S. 31:76, which provides that "[t]he expectancy of a landowner in the extinction of an outstanding mineral servitude cannot be conveyed or reserved directly or indirectly." However, in finding that the mineral reservations were prohibited by La. R.S. 31:76, the trial court ignored La. R.S. 31:3, which provides that parties may modify or renounce what is established in their favor by the mineral code unless expressly or impliedly prohibited from doing so, as long as "the renunciation or modification does not affect the rights of others and is not contrary to the public good."

A careful review of the jurisprudence shows that the public policy underlying the prohibition contained in La. R.S. 31:76 is to prevent the owner of property encumbered by a mineral servitude from reserving a reversionary mineral interest in property that would burden the land with a mineral servitude for a period longer than ten years without use. That was the situation confronted by the Supreme Court in Hicks v. Clark, 225 La. 133, 141, 72 So.2d 322, 325 (1954), which concerned a mineral servitude extinguished due to ten-years nonuse. In holding that the mineral rights reverted to the current owner of the property, rather than to a prior owner who had reserved a reversionary mineral interest, the Supreme Court explained that it was "the public policy of this state that the right to explore for oil, gas, and other minerals in the absence of use reverts to the land in a period of 10 years." Hicks, 72 So.2d at 325. (Emphasis added.) In Union Oil & Gas Corporation of Louisiana v. Broussard, 237 La. 660, 690, 112 So.2d 96, 106 (1958) (on rehearing), the Supreme Court reiterated that the sole purpose of the rule adopted in Hicks refusing to recognize the revisionary mineral interest in that case was to prevent "land from being burdened with a mineral servitude for a longer period than ten years without user."

In contrast, the public policy considerations central to the holding in Hicks were not at issue herein. There was mineral production on the Greensburg property from a period prior to the 1999 sale to Way-Jo through the time of trial. Unlike the mineral servitude at issue in Hicks, Riggs' mineral servitude did not terminate due to ten years non-use, but rather due to the contractual agreement the parties made at the time of the 1999 sale. Under such facts, the rationale and holding of Hicks is not applicable. Considering the continuous mineral production on the Greensburg property, giving effect to Way-Jo's mineral reservations does not violate the public policy that land should not be burdened with a mineral servitude for a period longer than ten years without use. For the same reason, the provisions of La. R.S. 31:76 also are not applicable, particularly since La. R.S. 31:3 grants parties contractual freedom to deviate from the provisions of the mineral code, as long as the deviation does not affect the rights of others and is not contrary to public policy.

Accordingly, the trial court erred in holding that the mineral reservations made by Way-Jo were invalid and in recognizing the intervenors as owners of the mineral rights to the property they purchased from Way-Jo. Those portions of the trial court judgment must be reversed. Since the mineral reservations Way-Jo made were valid, it is the owner of the mineral rights to the property purchased by intervenors. The claims of the intervenors with respect to those mineral rights should have been rejected.

Moreover, even assuming arguendo that the mineral reservations were invalid, we believe there would be merit in Way-Jo's additional argument that it should be allowed to annul the sales to the intervenors in that case based on the mutual error of the parties regarding an essential cause of the sale contracts, i.e., the legal effectiveness of Way-Jo's reversionary mineral reservations.¹¹ Essentially, Way-Jo argues that should La. R.S. 31:76 prohibit legal effect being given to its mineral reservations, valid consent to the sales never existed, since there was no meeting of the minds between the parties that the sales would include any rights beyond the property's surface rights.

11 In the proceedings below, the Arthurs and the Cheramies responded to Way-Jo's reconventional demand asserting nullity of the sales by filing an exception of prescription, which the trial court sustained based on its erroneous conclusion that the prescriptive period applicable to Way-Jo's nullity claims was one year from the date of the respective sales, which occurred in 2002 and 2003. Way-Jo claimed that its consent to the sales was vitiated by mutual error concerning the legal effect of its mineral reservations. See La. C.C. arts. 1948 & 1949. Moreover, the nullity that arises from a vice of consent is relative in nature. La. C.C. art. 2031; see also Salassi v. Salassi, 08-510 (La. App. 5th Cir. 5/12/09), 13 So.3d 670, 676; Saul Litvinoff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 LaX.Rev. 1, 36 (1989). Under La. C.C. art. 2032, an action to annul "a relatively null contract must be brought within five years from the time the ground for nullity either ceased, as in the case of incapacity or duress, or was discovered, as in the case of error or fraud." Thus, under La. C.C. art. 2032, the five-year-prescriptive period begins tolling only upon the discovery of the legal error forming the basis of the nullity claim. In this case, that occurred in March 2007, when Way-Jo attempted to make arrangements for the transfer of the mineral rights to itself following Riggs' death. Upon consulting an attorney, Way-Jo was advised for the first time of a problem with the mineral reservations. Way-Jo asserted its claim for nullity less than one year thereafter, in January 2008.

A contract is formed by the consent of the parties established through offer and acceptance. La. C.C. art. 1927. Under La. C.C. art. 1949, error vitiates consent to a contract when it concerns a cause without which the obligation would not have been incurred and that cause was known, or should have been known, to the other party. "Cause" is defined in La. C.C. art. 1967 as the reason why a party obligates himself. According to La. C.C. art. 1950,¹² error may concern a cause when it bears on the thing that is the contractual object or a substantial quality of that thing.

12 A party to a contract is entitled to relief under this provision when legal error has occurred because he has drawn erroneous legal conclusions and entered into a contract on the basis of them. See La. C.C. art. 1950, Comment (e); Litvinoff, 50 LaX.Rev. at 22.

Professor Litvinoff explained that:

Since consent is the expression of a party's will, if such an expression is prompted by an error it does not then express the party's true will, and therefore the consent thus given should be ineffective because a party in error is consenting to something to which he did not intend to consent. Thus, a party's error challenges the validity of a contract as no valid contract can be made without the valid consent of the parties.

* * *
For a contract to be annulled because of an error incurred by one of the parties the error must have determined that party's consent, that is, the error must affect the reason why the party consented to obligate himself or, in other words, it must be clear that the party would not have bound himself if such error had not been made. ... What matters is that the person would not have contracted were it not for the reason, or reasons, involved ... and that the error he claims to have made affects that reason.

Litvinoff, 50 La.L.Rev. at 11-12. (Footnotes omitted.)

A thorough review of the record in this case establishes that the principal cause of the contracts of sale to the intervenors was the sale of the surface rights only with Way-Jo reserving reversionary mineral interests in the property. Bankston testified at trial that discussions were held with the intervenors prior to the sales concerning the fact that "no minerals were involved" in the sales, because Riggs owned the mineral rights at that time, and Way-Jo would obtain them one year after Riggs' death. Likewise, Hagan also testified that he discussed the mineral rights with each prospective purchaser, leading to an understanding that since Way-Jo would acquire those mineral rights following Riggs' death, the purchasers would only get the surface rights to the property. He further testified that Way-Jo would not have sold any of the surface rights to the property if it had known that it could not reserve reversionary mineral interests therein, since there was no necessity for it to sell any portion of the property.

Moreover, the testimony of Bankston and Hagan is corroborated by the fact that the acts of sale themselves contain language making it clear that the mineral rights were reserved and the purchasers did not bargain for or expect to receive the mineral rights to the property. Specifically, the July 2, 2002 act of sale from Way-Jo to the Arthurs included the following provisions:

The Vendor herein reserves ALL MINERAL RIGHTS in and to the hereinabove described tract of property. As used herein, the term mineral rights refers to oil, natural gas, petroleum products and sulphur but does not refer to coal, lignite, top soil, gravel, clay gravel and/or sand. To the extent possessed by the vendor, all surface rights in and to the hereinabove described tract or parcel of land are transferred by the vendor to the vendee(s)/purchaser(s).
The parties acknowledge that this said tract of property is subject to a reservation of mineral rights by Robert Riggs and thereby to such mineral leases, royalty sales and related mineral rights and/or rights of use associated with mineral production granted by the said Robert Riggs. [Emphasis added.]

Each of the subsequent four sales to the Arthurs contained virtually identical provisions by which Way-Jo reserved a reversionary mineral interest in the property being sold.

Similarly, the April 21, 2003 act of sale from Way-Jo to Kent contained the following provisions:

The parties acknowledge that this hereinabove said tract of property is subject to a reservation of mineral rights by Robert E. Riggs and thereby to such mineral leases, royalty leases and related mineral rights and/or rights of use associated with mineral production granted by the said Robert E. Riggs. Furthermore, the Vendor specifically reserves unto itself, its heirs, successors and assigns oil, gas and subsurface mineral rights until these rights are forfeit due to prescription to the landowner. As used herein, the term mineral rights does not refer to soil, top soil, sand, gravel, clay gravel, coal or lignite. All surface rights held by Way-Jo, L.L.C. now or in the future are herein transferred to the Vendee by the Vendor.
The parties agree that Way-Jo, L.L.C. has herein reserved unto itself all subsurface minerals, such as oil, natural gas, petroleum products and sulphur for the maximum period allowed by Louisiana law. [Emphasis added.]

Finally, the sale from Way-Jo to the Cheramies contained a provision dealing with the mineral rights as follows:

Upon the expiration or termination of any mineral or mineral rights that have been granted or reserved [sic] shall revert to the purchaser herein. This is made subject to the terms and provisions of all valid existing oil, gas and mineral leases now in force and affecting the lands described herein.

Furthermore, Samuel Arthur testified at trial that he read the acts of sale, which contained language by which Way-Jo expressly reserved reversionary mineral interests. A party who signs a written agreement is presumed to know its contents. Coleman v. Jim Walter Homes, Inc., 08-1221 (La. 3/17/09), 6 So.3d 179, 183. Arthur specifically admitted that he understood that he was purchasing only the surface rights to the property and did not believe he was acquiring the mineral rights as well.¹³ Similarly, although Anthony Cheramie denied there was any discussion of the mineral rights at the time of the sale, he admitted being aware that he was only purchasing the surface rights to the property. He further acknowledged he understood that he was not buying the mineral rights when he paid the agreed-upon price.

13 It was stipulated by the parties that Luora Arthur's testimony would be the same as that of her husband.

Given the evidence presented, it is clear that the sale of the surface rights to the property while reserving reversionary mineral interests was a principal cause of the sales without which Way-Jo would not have incurred the obligations and, furthermore, that cause was known to the intervenors. Therefore, assuming arguendo that Way-Jo's mineral reservations were legally invalid, then Way-Jo's consent to the sales would have been predicated upon legal error in concluding that it could sell the surface rights while, at the same time, reserving reversionary mineral interests in the property.

In discussing the right of a party to rescind a contract based upon legal error, Professor Litvinoff offered the following example of such error that bears striking similarities to the instant situation:

[T]he invalidating force of error of law does not rest on the misunderstanding or misinterpretation of the law per se, but rather rests on the realization that such misunderstanding or misinterpretation has led a party into an erroneous understanding of the contractual object. Thus, for example, an heir who sells property he has inherited in the erroneous belief that, under the law of successions, he had received only the naked ownership while, according to the right application of that law, he had actually received the full ownership of that property, is entitled to the rescission of the contract of sale because his error of law led him to sell more than he intended. Indeed, it is easy to realize that, had the heir known that he had inherited the full ownership, he would not have sold the property, at least for that price.

Litvinoff, 50 La.L.Rev. at 23. (Footnotes omitted.)

In a similar manner, it is abundantly clear that had Way-Jo known that issues would arise concerning the legal effect of its reservation of reversionary mineral interests, it would not have sold the property, which all the parties knew to be oil-producing property. In fact, the primary value of the property lay in the subsurface minerals it produced. Therefore, since any error regarding the legality of Way-Jo's mineral reservations concerned a principal cause without which Way-Jo would not have incurred the obligation and that cause was known to the intervenors, Way-Jo would be entitled to annul the sales in that situation. See La. C.C. arts. 1949 & 1950; also see Jefferson Truck Equipment Co. v. Guarisco Motor Co., 250 So.2d 211, 215-16 (La. App. 1st Cir. 1971); Gisclair v. Matmoor, Inc., 537 So.2d 876, 878 (La. App. 5th Cir.), writ denied, 541 So.2d 901 (La. 1989).¹⁴

14 There is no merit in the intervenors' argument that annulment of the sales would allow Way-Jo to circumvent state law and violate public policy. Rather than circumventing La. R.S. 31:76, annulment of the sales due to mutual error would be based on an acknowledgement that the reservation of reversionary mineral interests can be given no legal effect. Moreover, in a situation where a seller is seeking to annul a sale of surface rights due to mutual error vitiating his consent, we see no reason, as between the seller and purchaser, why the public policy of this state should favor granting a windfall to a purchaser who neither bargained for nor paid for the mineral rights to the property.

Similarly, Way-Jo's consent to the property sale to Kent would likewise be vitiated due to legal error concerning a principal cause in the event that Way-Jo's reservation of revisionary mineral rights in that sale was legally invalid. The act of sale to Kent specifically states that "[t]he parties agree that Way-Jo, L.L.C. has herein reserved unto itself all subsurface minerals...." Despite this language, Kent testified that it was explained to her prior to the sale that Mr. Riggs "had reserved [the mineral rights] for a year after his death" and "after that the minerals would come to me." She did not indicate from whom she obtained this information. However, she further testified that she sought legal advice from her own attorney prior to the sale in order to confirm that her understanding was correct. In seeking the legal advice, Kent unmistakably displayed her awareness of the significance of the purchase price of the surface rights versus that of the surface and reversionary mineral rights and, thus, the principal cause of the contract.

Kent admitted that she read the act of sale before signing it. It must, therefore, be presumed that she was aware of the provision therein by which Way-Jo reserved for itself a reversionary mineral interest. Moreover, the terms of this provision were contrary to the independent legal advice Kent obtained, which indicated that she would be entitled to the mineral rights upon the expiration of Riggs' servitude. In view of the provision in the act of sale, as well as the testimony of Bankston and Hagan regarding the discussions they had with the purchasers concerning the mineral rights, it appears that not only was Kent aware of the principal cause of the sale, she also was aware of the error under which Way-Jo entered into the sale. Under such circumstances, Kent would not be entitled to declaratory judgment recognizing her as owner of the mineral rights to the property at issue. Moreover, if the mineral reservation included in the sale had been found to be invalid, Way-Jo also would be entitled to annul its sale to Kent.¹⁵

15 There is no merit in Kent's contention that Way-Jo is not entitled to raise the defense of legal error against her on appeal, because this issue was not raised in any pleading filed against her. Although Way-Jo did not raise legal error against Kent either as an affirmative defense or in a reconventional demand, the pleadings were expanded by evidence introduced at trial on this issue. Specifically, Bankston and Hagan testified that they had discussions with all prospective buyers concerning the fact that they intended to reserve the mineral rights to the property. While Kent was clearly included within the scope of Bankston and Hagan's testimony, which was pertinent only to Way-Jo's nullity claim, counsel for Kent did not object to the testimony on the basis that it was irrelevant to Kent. Nor does it appear that Kent's counsel was surprised or prejudiced by Way-Jo's nullity claim, since Way-Jo previously had raised this claim with respect to the Arthurs, who were represented by the same counsel. Under these circumstances, the pleadings were expanded to raise the issue of nullity due to legal error. See La. C.C.P. art. 1154; Fitzgerald v. Tucker, 98-2313 (La. 6/29/99), 737 So.2d 706, 715.
--------

CONCLUSION

For the reasons assigned, we reverse those portions of the trial court judgment rendered in favor of the Estate of Robert Riggs and against Way-Jo, L.L.C., John Bankston and Wayne Hagan that: (1) declared the nullity of the sale of a tract of property containing approximately 331 acres from Robert E. Riggs to Way-Jo, L.L.C., dated February 22, 1999, and recorded in the public records of St. Helena Parish on February 24, 1999 at COB 224, Page 316; and (2) ordered that the ownership of 80 acres of the original 331 acre tract not resold by Way-Jo, L.L.C. to third parties reverted back to the Estate of Robert Riggs. Judgment is hereby rendered in favor of Way-Jo, L.L.C, John Bankston and Wayne Hagan dismissing all claims against them by the Estate of Robert Riggs, with prejudice.

Further, we reverse that portion of the trial court judgment rendered in favor of Samuel and Luora Arthur and against Way-Jo, L.L.C, John Bankston and Wayne Hagan that declared the reservations of mineral rights made by Way-Jo in the below-described sales to be nullities and recognized the Arthurs as the owners of the mineral rights to the property conveyed in the sales enumerated below, and judgment is hereby rendered in favor of Way-Jo, L.L.C, recognizing it to be the owner of the mineral rights to the property that is described in each of the following sales:

(1) The July 2, 2002 sale by Credit Deed, recorded in COB 239, Page 550 and MOB 189, Page 152 in the records of the St. Helena Parish Clerk of Court, and Act of Correction dated April 4, 2003, recorded in COB 242, Page 543 and MOB 194, Page 557, from Way-Jo, L.L.C, to Samuel James Arthur and Luora Jean McNabb Arthur of the 6.97-acre, more or less, tract of immovable property situated in St. Helena Parish, Louisiana, and being more fully described in Appendix A, attached hereto and made a part hereof.
(2) The December 23, 2002 sale by Warranty Cash Deed, recorded in COB 241, Page 552 in the records of the St. Helena Parish Clerk of Court, and Act of Correction dated April 4, 2003, recorded in COB 242, Page 541, from Way-Jo, L.L.C, to Samuel James Arthur and Luora Jean McNabb Arthur of the 7.15-acre tract of immovable property situated in St. Helena Parish, Louisiana, and being more fully described in Appendix B, attached hereto and made a part hereof.
(3) The April 4, 2003 sale by Warranty Cash Deed, recorded in COB 242, Page 545 in the records of the St. Helena Parish Clerk of Court, from Way-Jo, L.L.C., to Samuel James Arthur and Luora Jean McNabb Arthur of the 8.75-acre tract of immovable property situated in St. Helena Parish, Louisiana and being more fully described in Appendix C, attached hereto and made a part hereof.
(4) The June 20, 2003 sale by Warranty Cash Deed, recorded in COB 244, Page 59 in the records of the St. Helena Parish Clerk of Court, from Way-Jo, L.L.C, to Samuel James Arthur and Luora Jean McNabb Arthur of the 10.00-acre tract of immovable property situated in St. Helena Parish, Louisiana, and being more fully described in Appendix D, attached hereto and made a part hereof.
(5) The December 31, 2003 sale by Warranty Cash Deed, recorded in COB 245, Page 592 in the records of the St. Helena Parish Clerk of Court, from Way-Jo, L.L.C, to Samuel James Arthur and Luora Jean McNabb Arthur of the 4,65-acre tract of immovable property situated in St. Helena Parish, Louisiana, and being more fully described in Appendix E, attached hereto and made a part hereof.

Further, we reverse that portion of the trial court judgment rendered in favor of Sarah Kent and against Way-Jo, L.L.C, John Bankston and Wayne Hagan that declared the reservation of mineral rights made by Way-Jo in the below-described sale to be a nullity and recognized Sarah Kent as owner of the mineral rights to the property she acquired in an April 21, 2003 sale from Way-Jo, L.L.C, and hereby render judgment in favor of Way-Jo, L.L.C, recognizing it to be the owner of the mineral rights to the 33.93-acre tract of property situated in St. Helena Parish, Louisiana, that is described in the Warranty Cash Deed, recorded in COB 243, Page 107 in the records of the St. Helena Parish Clerk of Court, and being more fully described in Appendix F, attached hereto and made a part hereof.

Further, we reverse that portion of the trial court judgment rendered in favor of Anthony Cheramie and Gail Terrebonne Cheramie and against Way-Jo, L.L.C, John Bankston and Wayne Hagan that declared the reservation of mineral rights made by Way-Jo in the below-described sale to be a nullity and recognized Anthony and Gail Cheramie as owners of the mineral rights to the property they acquired in a January 27, 2003 sale from Way-Jo, L.L.C, and hereby render judgment in favor of Way-Jo, L.L.C, recognizing it to be the owner of the mineral rights to the 50-acre tract of property situated in St. Helena Parish, Louisiana, that is described in the said Act of Cash Sale, recorded in COB 242, Page 144 in the records of the St. Helena Parish Clerk of Court, and being more fully described in Appendix G, attached hereto and made a part hereof.

That portion of the trial court judgment casting the defendants, Way-Jo, L.L.C, John Bankston and Wayne Hagan, with all court costs is hereby reversed, and it is ordered that the Estate of Robert Riggs is to pay all expert witness fees owed to Dr. Ted Hudspeth and Mary Ann Sherry, as well as one-half of the remaining court costs incurred in these consolidated matters. The remaining one-half of the court costs are to be paid one-third by Samuel and Luora Arthur, one-third by Anthony and Gail Cheramie, and one-third by Sarah Kent.

In all other respects, the judgment of the trial court is affirmed.

It is further ordered that one-half of the costs of these consolidated appeals are to be paid by the Estate of Robert Riggs and the remaining one-half of the costs are to be paid one-third by Samuel and Luora Arthur, one-third by Anthony and Gail Cheramie, and one-third by Sarah Kent.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

APPENDIX "A"

6.97 acres, more or less, located in Headrights 57 and SB, T2S, R5E, Greensburg Land District, St. Helena Parish, Louisiana and being all of the following described tract of property located to the South-Southeast of the centerline of that sixty (GO) foot right of way for access, which right of way proceeds through the following tract of property, to-wit: 15.72 acres, more or less, located in Headright 57 and 58, T2S, R5E, Greensburg Land District, St. Helena Parish, Louisiana and further described as follows: The point of beginning is 738.79 feet South 02 degrees 02 minutes 21 seconds East and 1,639.44 feet South 01 degrees 19 minutes 40 seconds East from the Northwest Corner of the fractional Section 25, T2S, R5E, St. Helena Parish, Louisiana; from the Point of Beginning proceed South 89 degrees 58 minutes 47 seconds West, 623.16 feet (found iron pipe) and corner; thence proceed South 01 degrees 33 minutes 33 seconds East, 345.74 feet; thence proceed North 89 degrees 34 minutes 44 seconds East, 36.92 feet; thence proceed South 01 degree 33 minutes 33 seconds East, 260.00 feet (found iron rod) and corner; thence proceed South 69 degrees 34 minutes 44 seconds West, 211.93 feet to the Eastern right of way of Louisiana Highway 43 and corner; thence proceed along the Eastern right of way of Louisiana Highway 43, South 01 degree 07 minutes 59 seconds East, 51.67 feet, South 04 degrees 35 minutes 17 seconds East, 173.73 feet, South 08 degrees 16 minutes 12 seconds East, 145.69 feet, South 09 degrees 52 minutes 07 seconds Bast, 153.04 feet and South 11 degrees 34 minutes 05 seconds East, 125.04 feet and corner; thence proceed North 53 degrees 10 minutes 14 seconds East, 1,029.63 feet and corner; thence proceed North 2 9 degrees 32 minutes 02 seconds West, 263.06 feet; thence proceed North, 403.47 feet to the Point of Beginning. All as per map and survey of 15.72 acres by George D. Sullivan, Registered Land Surveyor. A copy of said map and survey is attached hereto and made a part hereof. That part of the 15.72 acres herein transferred and being 6.97 acres, more or less, is marked in yellow on this said map and survey.

APPENDIX "B"

A CERTAIN TRACT OR PARCEL OF LAND CONTAINING 7.15 ACRES SITUATED IN SECTION 25 AND HEADRIGHT 58, T2S, R5E, GREENSBURG LAND DISTRICT, ST. HELENA PARISH, LOUISIANA AND MORE FULLY DESCRIBED AS FOLLOWS: The Starting Point is 2,606.63 feet South and 79.06 feet East from the Northwest corner of Section, 25, T2S, R5E, Greensburg Land "District, St. Helena Parish, Louisiana; from the said Point of Beginning, proceed thence along the center of gravel road. North 65 degrees 47 minutes 50 seconds East, 59.05 feet, North 54 degrees 03 minutes 56 seconds East, 67.47 feet, North 36 degrees 10 minutes 18 seconds East, 230.57 feet, North 28 degrees 01 minute 40 seconds East, 175.12 feet, North 20 degrees 44 minutes 32 seconds East, 343.02 feet, North 35 degrees 28 minutes 43 seconds East, 49,97 feet, North 58 degrees 51 minutes 04 seconds East, 49.76 feet, North 76 degrees 45 minutes 44 seconds East, 49.95 feet, South B7 degrees 50 minutes 39 seconds East, 53.05 feet to corner; thence proceed South 21 degrees 22 minutes 13 seconds West, 455.96 feet to corner, 3/4 inch iron rod; thence proceed South 02 degrees 05 minutes 23 seconds West, 354,88 feet to corner, 3/4 inch iron rod; thence proceed South 00 degrees is minutes 51 seconds. West, 304.70 feet to corner, existing one inch iron pipe; thence proceed South 31 degrees 14 minutes 45 seconds East, 134.68 feet to corner, 3/4 inch iron rod; thence proceed South 81 degrees 28 minutes 13 seconds west, 354.11 feet to corner, 3/4 inch iron rod; thence proceed North 11 degrees 50 minutes 14 seconds West, 258.66 feet to corner, existing one inch iron pipe; thence proceed North 29 degrees 32 minutes 02 seconds Weat, 233.11 feet to Point of Beginning. All as per survey of Philip G. Holland, Professional Land Surveyor, dated November is, 2002.

APPENDIX "C"

15.72 acres, more or less, located in Headright 57 and 58, T2S, E.5E, Greensburg Land District, St, Helena Parish, Louisiana and further described as follows: The point of beginning is 738.79 feet South 02 degrees 02 minutes 21 seconds Bast and 1,S39.44 feet South 01 degrees 19 minutes 40 seconds Bast from the Northwest Corner of the fractional Section 25, T2S, R5E, Greensburg Land District, St. Helena Parish, Louisiana; from the Point of Beginning proceed South 89 degrees 58 minutes 47 seconds West, 623.16 feet (found iron pipe) and corner; thence proceed South 01 degrees 33 minutes 33 seconds East, 345.74 feet; thence proceed North 89 degrees 34 minutes 44 seconds East, 36.92 feet; thence proceed South 01 degree 33 minutes 33 seconds East, 260.00 feet (found iron rod) and corner; thence proceed South 89 degrees 34 minutes 44 seconds West, 211.93 feet to the Eastern right of way of Louisiana Highway 43 and corner; thence proceed along the Eastern right of way of Louisiana Highway 43, South 01 degree 07 minutes 59 seconds East, 51.67 feet, South 04 degrees 35 minutes 17 seconds East, 173.78 feet, South 08 degrees 16 minutes 12 seconds East, 145.89 feet, South 09 degrees 52 minutes 07 seconds East, 153.04 feet and South 11 degrees 34 minutes 05 seconds East, 125.04 feet and corner; thence proceed North 53 degrees 10 minutes 14 seconds East, 1,029.63 feet and corner; thence proceed North 29 degrees 32 minutes 02 seconds West, 263.06 feet; thence proceed North, 403.47 feet to the Point of Beginning. All as per map and survey of 15.72 acres by George D. Sullivan, Registered Land Surveyor. A copy of said map and survey is attached hereto and made a part hereof. LESS AND EXCEPT: 6.97 acres, more or less, located in Headrights 57 and S8, T2S, E.5E, Greensburg Land District, St. Helena Parish, Louisiana and being all of the hereinabove described 15.72 acre tract of property located to the South-Southeast of the center line of that sixty (60) foot right of way for access, which right of way proceeds through the said tract of property. Being the same tract of property transferred by Way-Jo-- L.L.C. a/k/a wayjo, L.L.C. by credit deed dated July 2, 2002 and duly filed of record at Conveyance Book 239, Page 550 and Mortgage Book 189, Page 152 of the records of the St. Helena Parish Clerk of Court.

APPENDIX "D"

A certain tract or parcel of land containing 10.00 acres situated in Section 25, T2S, R5E, Greensburg Land DiBtrict, St. Helena Parish, Louisiana and being more fully described as follows: The starting point is 3,094.97 feet South and 527.26 feet. East from the Northwest corner of Section 25, T2S, R5E, Greensburg Land District, St. Helena Parish, Louisiana, found one (l) inch iron pipe; thence proceed North 0 0 degrees 15 minutes 51 seconds East, 304.70 feet to corner, existing 3/4 inch iron rod; thence proceed North 02 degrees 05 minutes 23 seconds East, 354.88 feet to corner, existing 3/4 inch iron rod; thence proceed North 21 degrees 22 minutes 13 seconds East, 455.96 feet to corner, said corner being in center of gravel road; thence proceed along the center line of gravel road, South 66 degrees 49 minutes 31 seconds East, 63.37 feet, South 45 degrees SB minutes 30 seconds East, 310.51 feet, South 65 degrees 26 minutes 33 seconds East, 47.36 feet to corner; thence proceed South 00 degrees 20 minutes 20 seconds West, 655.09 feet to corner, 3/4 inch iron rod; thence proceed South 72 degrees 49 minutes 3 0 seconds West, 543.3 5 feet to the Point of Beginning. All as per map and survey by Philip G. Holland,' Professional Land Surveyor, dated June 7, 2003, A copy of this survey is attached hereto and made a part hereof.

APPENDIX "E"

That certain tract or parcel of land containing 4.65 acres situated in Headright 53, T2S, R5S, Greensburg Land District, St. Helena Parish, Louisiana and more fully described as follows: The starting point is 3,210.28 feet South and 597.22 feet East from the Northwest corner of Section 25, T2S, R5E, Greensburg Land District, St. Helena Parish, Louisiana, existing 3/4 inch iron rod; thence proceed South 10 degrees 20 minutes 3 6 seconds East, 495.65 feet to corner, existing one (1) inch iron pipe; thence proceed South 53 degrees 07 minutes 23 seconds West, 375.19 feet to comer, existing one (1) inch iron pipe; thence proceed North 11 degrees 53 minutes 39 seconds West, 674.71 feet to corner, existing 3/4 inch iron rod; thence proceed North 81 degrees 28 minutes 13 seconds East, 354.11 feet to the Point of Beginning and containing 4.65 acres as per survey by Philip G. Holland, Professional Land Surveyor, dated December 29, 2003, A copy of this said map and survey is attached hereto and made a part hereof.

APPENDIX "F"

33.93 acres, more or less, situated in Sections 25 and 50, T2S, R5E, Greensburg Land District, St. Helena Parish, Louisiana and in Section 50, T2S, R6E, Greensburg Land District, St. Helena Parish, Louisiana and further described as follows: The Starting Point {Point of Beginning) is 1,559.17 feet South and 3,015.80 feet East from the Northwest corner of Section 25, T2S, R5E, Greensburg Land District, St. Helena Parish, Louisiana; thence proceed North 72 degrees 07 minutes 46 seconds East, 1,725.90 feet and corner; thence proceed South 01 degree 21 minutes 59 seconds West, 798.60 feet and corner; thence proceed South 72 degrees 52 minutes 51 seconds West, 2,244.69 feet and corner; thence proceed North 28 degrees 51 minutes 34 seconds East, 608.27 feet; thence proceed North 29 degrees 53 minutes 26 seconds East, 457.63 feet to the Starting Point; all as per map and survey by Philip G. Holland, Professional Land Surveyor, dated November 11, 2002. A copy of said map and survey is attached hereto and made a part hereof.

APPENDIX "G"

THAT CERTAIN LOT OF GROUND, together with all the buildings and improvements thereon and all of the rights, ways, privileges, servitudes and advantages thereunto belonging or in anywise appertaining, more fully described as follows, to-wit: A certain tract or parcel of land containing 50.00 acres situated in Section 25 and head right 58, Township 2 South, Range 5 East, St. Helena Parish, Louisiana and more fully described as follows; Starting point is 2806.83 feet South and 79.06 feet East from Northwest corner of Section 25, Township 2 South, Range 5 East; Thence North 29° 32' 02" West 30.00 feet to corner, 2" sucker rod; Thence North 00° 00' 48" West 403.50 feet to corner, existing 3/4" Galv. pipe- Thence North 01°20'28" West 1589.24 feet to corner existing T-Post, set 2" sucker rod; Thence North 83° 02*11" East 1432.32 feet to corner 2" sucker rod; Thence South 02° 36' 30" West to corner, said corner being in center of gravel road; Thence along the center of Gravel Road, South 69°04'21" West 119.36 feet, South 73°48'44" West 173.21 feet, South 89° 43'47" West 48.49 feet, North 65°26'33" West 47.36 feet, North 45° 58' 30" West 3i0.5rfeet, North 66°49'31" West 83.37 feet, North 87° 50'39" West 53.06 feet, South 76°45'44" West 49.95 feet, South 58°51' 04" West 49.76 feet, South 36°28'43" West 49.97 feet, South 20°44'32" West 343.02 feet, South 28°01'40" West 175.12 feet South 38°10'18" West 230.57 feet, South 54QQ3'58, West 67.47 feet, South 65°47'50" West 59.05 feet to Point of Beginning, said tract contains 50.00 acres as per survey by Philip G. Holland, Professional Land surveyor, dated January 11, 2003. Notwithstanding the above description, said acreage is for descriptive purposes only and does not guarantee the quantity of land described herein. Improvements thereon hear the Municipal No. 50 ac. In S25 & beau right 58, T2S, R5E, St Helena Parish, LA ESTATE OF ROBERT E. RIGGS
VERSUS
WAY-JO, L.L.C.

NUMBER 2011 CA 1651

ARAH M. KENT
VERSUS
THE SUCCESSION OF ROBERT E. RIGGS AND WAY-JO, L.L.C.

NUMBER 2011 CA 1652

WHIPPLE, J., concurring in part and dissenting in part.

I respectfully concur in part and dissent in part. While I concur in the result reached in the majority's resolution of Assignment of Error No. 1,1 disagree with the conclusion that the subsequent transfers to the intervenors can or should be set aside for vices of consent. As the majority correctly notes in part, the law accords a high degree of sanctity to authentic acts. However, the majority then errs by finding legal error, where there is none, to go beyond the authentic acts and make de novo credibility assessments and a re-determination of the facts, which is not the role of the appellate courts.

With respect to the critical issue regarding the intervenors' claims in this case, given the Hicks case and the provisions of the Mineral Code, "multi-level or subsequent reversionary clauses are clearly prohibited. Although not addressed directly or in much detail by the majority, there are longstanding, strong public policy reasons supporting the prohibition against clauses such as in the instant matter. I agree with the trial court that Way-Jo's attempted reversion was invalid when it divested itself of the tracts by sale to the intervenors. Thus, I disagree with the analysis and the conclusion by the majority that Way-Jo can now have the sales it voluntarily entered into, with invalid efforts to reserve mineral rights not lawfully due or available to it, set aside all these years later. It is clear from this record that Way-Jo simply made a "bad deal." In my view, absent some showing that the sales were induced by fraud, Way-Jo is bound by the contracts it willingly, albeit unadvisedly, entered into. Thus, under the facts of this case, much of the opinion's discussion is unnecessary. In particular, for example, whether or not Way-Jo (or any of the buyers) acted with or without advice of counsel is of no moment. I agree with the trial judge that the intervenors were entitled to rely on the public records and that Way-Jo is not entitled to now re-form the contracts it entered into. Louisiana Revised Statutes 31:76 is very clear in its mandate: "[t]he expectancy of a landowner in the extinction of an outstanding mineral servitude cannot be conveyed or reserved directly or indirectly." See also Hicks v. Clark, 225 La. 133, 141, 72 So. 2d 322, 325 (1954) and its progeny.

Thus, I respectfully concur in part and dissent in part.