Opinion
No. 95 CA 0528.
January 26, 1996.
APPEAL FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF POINTE COUPEE, TRIAL COURT NO. 23,984; STATE OF LOUISIANA, HONORABLE SHARAH H. MULMORE, JUDGE PRESIDING.
Lawrence B. Sandoz, Jr., Opelousas, for Defendant-Appellant.
Laurie J. Heap and T. Michael Landrum, Baton Rouge, for Plaintiff-Appellee.
This is a suit by the State of Louisiana, through the Department of Wildlife and Fisheries (State), seeking to compel Anchor Gasoline Corporation (Anchor), the former lessee of a parcel of land now owned by the State, to remove a refinery which it constructed during the term of its lease. Both parties filed motions for summary judgment. From the trial court judgment granting summary judgment in favor of the State, Anchor appeals, urging that the trial court erred in its interpretation of the lease contract in requiring Anchor to remove the refinery and requiring it to pay damages for removal of the refinery.
In 1957, Anchor leased approximately 10 acres of land located in Pointe Coupee Parish from Lillie B. Jumonville and the heirs of E.A. Jumonville. A "gasoline plant" was constructed on the property by Anchor. In 1985, the State purchased the property, subject to Anchor's lease, as part of a 1500-acre tract for the purpose of establishing the Sherburne Wildlife Management Area. In 1987, Anchor notified concerned parties of its intent not to renew the lease beyond June 30, 1987.
In August of 1988, the State filed suit for declaratory and injunctive relief, which was later converted to an ordinary proceeding to compel Anchor to remove the abandoned refinery and equipment which allegedly had a 60 percent asbestos content. In 1992 both plaintiff and defendant filed motions for summary judgment. A hearing was held in 1994, following which the trial judge rendered judgment in favor of the State, granting its motion for summary judgment and denying Anchor's motion for summary judgment.
The judgment appealed from does not elaborate on the specific relief granted to plaintiff, but generally grants the State's motion for summary judgment. That motion sought a judgment as prayed for in plaintiff's petition, which was as follows: judgment establishing the right of the State to have Anchor remove its former facilities and return the property to its prior condition; and, damages in the amount of $1,116,083.24, representing the State's cost to clean up the site, past rental and future value of the property, or alternatively, an order to defendant to remove its former facilities and return the property to its prior condition together with the posting of bond to ensure same. Thus, contrary to Anchor's assertion on appeal, it does not appear that the trial court specifically awarded damages, an item that would not be appropriate for disposition by summary judgment.
According to the petition of the State, after vacating the leased premises, Anchor left behind buildings, power lines, sheds, roads, an office complex containing miscellaneous office equipment, pipe racks, pipelines, four butane tanks, two gasoline tanks, three distillate tanks, two kerosene tanks, two absorbers, pumps for absorbers, four engines, a cooling tower, a refrigerator system, one deethanizer, a still, five dehydrators, and piping for compressors. The State further alleges that the Department of Environmental Quality ran tests on the equipment and structures, which tests indicate a 60 percent asbestos content. Additionally, the State alleges the structures and equipment contain various other chemicals and substances which pose an immediate and irreparable threat to the health and well-being of the public and of the wildlife and habitat of the area.
We are called upon in this appeal to evaluate the appropriateness of the granting of summary judgment in favor of the State. Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La. 1991).
Summary judgment under LSA-C.C.P. art. 966 is available only when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Thompson v. South Central Bell Telephone Company, 411 So.2d 26 (La. 1982). Because both parties filed for summary judgment in the instant case, the defendant has conceded that this is an appropriate case for the rendition of summary judgment.
With these principles in mind, we look first to the contractual agreement which governs the relationship of these parties, the lease agreement entered into between Anchor and the Jumonvilles in 1957, which reads in pertinent part:
Should Lessee not exercise its option to lease said property for the first ten years [sic] optional period, then all fixtures and improvements placed on said property shall remain as the property of Lessors; but if Lessee exercises its option to lease the property for the said first ten year optional period, then at any time thereafter upon the payment of all lease rentals for that period, the Lessee shall have the right to remove all fixtures and improvements placed on said property, which fixtures and improvements shall be owned by Lessee. Likewise at any time after the expiration of said ten year period upon the payment of all rental then due, Lessee shall have the right to remove all fixtures and improvements placed on said property, which fixtures and improvements shall be owned by Lessee. Lessee obligates itself to leave said property in the same condition as upon the execution of this lease. [Emphasis supplied.]
Because the lease actually endured the entire term of the lease with renewals for 30 years, the lessee came to own the improvements made on the property, under the lease terms. The question then becomes whether the right of lessee to remove the improvements is also accompanied by an obligation to remove the improvements, or whether lessee has the choice of abandoning the improvements. The trial court held that this contractual language required Anchor to remove the improvements at the termination of the lease. We affirm.
Recognizing that LSA-C.C. art. 2726 makes the right of a lessee to remove improvements subject to the provisions of Louisiana Civil Code articles 493, 493.1, 493.2 and 495, the trial court, nevertheless, followed the rule that the referenced articles apply only in the absence of juridical acts, such as the instant lease. See LSA-C.C. art. 493, Comments (c); Wilson Oil Co. Inc. v. Central Oil Supply Corp., 557 So.2d 753 (La.App. 2d Cir.), writs denied, 563 So.2d 885, 886 (La. 1990). The trial court then considered the express language of the lease in the instant case and held that the former lessee had an obligation to "leave said property in the same condition as upon the execution of this lease." Thus, in interpreting the lessee's obligation to restore the premises as an obligation to remove the "fixtures and improvements," the trial court rejected the lessee's contention that the obligation conflicted with its right to remove them.
LSA-C.C. art. 493 provides in pertinent part:
Buildings, other constructions permanently attached to the ground, and plantings made on the land of another with his consent belong to him who made them. They belong to the owner of the ground when they are made without his consent.
When the owner of buildings, other constructions permanently attached to the ground or plantings no longer has the right to keep them on the land of another, he may remove them subject to his obligation to restore the property to its former condition.
If he does not remove them within 90 days after written demand, the owner of the land acquires ownership of the improvements and owes nothing to their former owner.
LSA-C.C. art. 493.1 provides:
"Things incorporated in or attached to an immovable so as to become its component part under Articles 465 and 466 belong to the owner of the immovable."
LSA-C.C. art 493.2 provides:
"One who has lost the ownership of a thing to the owner of an immovable may have a claim against him or against a third person in accordance with the following provisions."
LSA-C.C. art 495 provides in pertinent part:
One who incorporates in or attaches to the immovable of another, with his consent, things that become component parts of the immovable under Articles 465 and 466, may in the absence of other provisions of law or juridical acts, remove them subject to his obligation of restoring the property to its former condition. If he does not remove them after demand the owner of the immovable may have them removed at the expense of the person who made them or elect to keep them and pay at his option, the current value of the materials and of the workmanship or the enhanced value of the immovable.
We, also, see no conflict between the two provisions. One deals with the lessee's obligation, the other with the lessee's right; the two are not synonymous. Because we see no conflict, we do not think the lease is ambiguous.
Interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences no further interpretation may be made in search of the parties' intent. LSA-C.C. art. 2046. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. LSA-C.C. art. 2050.
Furthermore, we note that LSA-C.C. art. 495 provides the owner of the immovable the option of requiring the removal, at the expense of the person who made the "improvements," of things that become component parts of the immovable under Articles 465 and 466. Although the equipment and/or buildings in the instant case may not qualify as component parts under Articles 465 and 466, we view the lease between the parties as tantamount to Article 495's provision, that the lessee must pay for the removal if the lessor demands same.
We find further support for our conclusion that the trial court was correct in the instant case in a previous case by this court, Britt Builders, Inc. v. Brister, 618 So.2d 899 (La.App. 1st Cir. 1993), wherein we applied common sense to our interpretation of LSA-C.C. art. 496 when a landowner found herself burdened with an unwanted slab on her property. Article 496 provides that when constructions are made by a possessor in good faith, the owner of the immovable may not demand their demolitions and removal. The owner is bound to keep the constructions and at his option, to pay to the possessor either the cost of the materials and labor, or their current value, or the enhanced value of the immovable. In Britt, we stated:
[T]his Court believes that the redactors of our Civil Code envisioned application of Article 496 when the owner of the immovable would be unjustly enriched by the efforts of a good faith possessor. They did not intend that the owner be burdened with partial constructions and unwanted works on his property that actually diminished its value.
Finally, we find lessee's reliance on Guzzetta v. Texas Pipe Line Co., 485 So.2d 508 (La. 1986) to be unwarranted. That case is factually distinguishable because it involved a pipeline buried in swampland and a servitude that did not constitute a juridical act such as the instant lease. Thus, the Louisiana Supreme Court applied Article 493 to hold that the landowner could not demand removal at the defendant's cost. References in that case and in the comments to Article 493 concerning the applicability of Article 493 to leases are couched in terms of "may" and not "shall."
Accordingly, we hold that the State is entitled to judgment as a matter of law. However, because the trial court's general grant of summary judgment was not specific, we amend the judgment to provide that the State is entitled to judgment, as a matter of law, ordering the defendant to remove its former facilities and to return the property to its prior condition. We know of no authority which would justify requiring the defendant to post bond to ensure compliance with this court's order. The State will have at its disposal all legal procedures and remedies for enforcement of its judgment.
We cast defendant for all costs of this appeal.
JUDGMENT AMENDED, AND AS AMENDED, AFFIRMED.
TANNER, J. Pro Tem., dissents and assigns reasons.
The result in this case hinges on the meaning of the following two sentences of the contract of lease between Anchor Gasoline Corporation (hereinafter "Anchor") and plaintiffs (State of Louisiana, Through the Department of Wildlife and Fisheries, hereinafter "State") ancestor-in-title, which read:
[A]t any time after the expiration of said ten year period upon the payment of all rental then due, Lessee shall have the right to remove all fixtures and improvements placed on said property, which fixtures and improvements shall be owned by Lessee. Lessee obligates itself to leave said property in the same condition as upon the execution of this lease.
Anchor argues that the first sentence quoted above, giving it the right of ownership and removal of the "fixtures and improvements" implies that it could also abandon the "fixtures and improvements" at its option. The basis of Anchor's argument is given as the fact that the contract allows Anchor to remove the "fixtures and improvements" "at any time" after expiration of the lease. Anchor argues that requiring it to remove the refinery at the end of the lease, would render nugatory Anchor's right to remove the refinery "at any time". Anchor further states that "the clause requiring the lessee to return the property to its original condition at the termination of the lease, in order to preserve its meaning, must be interpreted to exclude any obligation on Anchor's part of removing the refinery." The State argues that the reverse can also be asserted; i.e., interpretation of the clauses to allow Anchor to abandon the refinery would render nugatory the clause requiring Anchor to leave the premises in the same condition as upon the execution of the lease.
Interpretation of a contract is the determination of the common intent of the parties. La.C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La.C.C. art. 2046. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La.C.C. art. 2050. In the instant case, the two clauses at issue, when read together do present an ambiguity.
The majority opinion interprets the clauses to mean that although Anchor did not obtain the "right" to remove the refinery until the conditions outlined in the contract were met, Anchor nevertheless had an "obligation" to remove the refinery at the termination of the lease. One would assume that if Anchor was obliged to remove the refinery at lease-end, then Anchor would have the "right" to do so, and thus, as a practical matter, it would be superfluous as to whether Anchor had met the conditions stated in the contract as being precedent to Anchor's attainment of the "right" to remove the refinery.
In addition to the "unambiguous" interpretation articulated by the majority opinion, at least one other interpretation of these contractual provisions can be postulated. It is possible that the sentence requiring return of the premises to its pre-lease condition, following as it does the sentence allowing removal of the refinery by Lessee, modifies that clause to mean that if Lessee removes the refinery, at its option, then the premises must be returned to the pre-lease condition. Presumably, if the structures had value, the landowner would not object to their abandonment.
In order to determine the true intent of the parties, further inquiry must be made. A doubtful provision must be interpreted in light of the nature of the contract, equity, usage, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La.C.C. art. 2053. Although as a general rule, parol evidence is inadmissible to vary, modify, explain, or contradict a writing, when the terms of a written contract are susceptible of more than one meaning or there is uncertainty or ambiguity as to its provisions, parol evidence is admissible to clarify the ambiguity and show the intention of the parties. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544 (La.App. 1st Cir. 3/11/94), 634 So.2d 466. See also Borden, Inc. v. Gulf States Utilities Company, 543 So.2d 924 (La.App. 1st Cir.), writ denied, 545 So.2d 1041 (La. 1989); Kean v. Lemaire, 451 So.2d 151 (La.App. 1st Cir. 1984). In cases of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. La.C.C. art. 2056. But see La.C.C. art. 2057. If it is determined that the contract between the parties did not contemplate or provide for the situation encountered in the instant case, then La.C.C. art. 2054 requires resort to law, equity or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose.
Although current law would be considered to address matters not covered by contract, review of the law in existence at the time the contract was confected may be pertinent to a determination of the parties' intent. Consequently, we note that La.C.C. art. 493 was enacted by Acts 1979, No. 180, § 1, and had no prior counterpart. In fact, former La. Revised Civil Code of 1870, art. 508 (in effect in 1957) provided, in pertinent part:
When plantations, constructions and works have been made by a third person, and with such person's own materials, the owner of the soil has a right to keep them or to compel this person to take away or demolish the same.
If the owner requires the demolition of such works, they shall be demolished at the expense of the person who erected them, without any compensation; such person may even be sentenced to pay damages, if the case require it, for the prejudice which the owner of the soil may have sustained.
While it may seem that the State would or should prevail, we certainly can not say that there is no genuine issue as to a material fact remaining in this case. Summary judgment under La.C.C.P. art. 966 is available only when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966; Thompson v. South. Central Bell Telephone Company, 411 So.2d 26 (La. 1982); Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087 (La. 1981); Chaisson v. Domingue, 372 So.2d 1225 (La. 1979). All doubt concerning dispute as to a material issue of fact must be resolved against granting the motion for summary judgment and in favor of trial on the merits. Penalber v. Blount, 550 So.2d 577 (La. 1989); Lytell v. Goodyear Tire Rubber Co., 439 So.2d 542 (La.App. 1st Cir. 1983); Gulf-Wandes Corporation v. Vinson Guard Service, Inc., 393 So.2d 207 (La.App. 1st Cir. 1980), writ denied, 397 So.2d 1359 (La. 1981). The burden is upon the mover for summary judgment to show that no genuine issue of material fact exists, and only when reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law is summary judgment warranted. Robertson v. Our Lady of the Lake Regional Medical Center, 574 So.2d 381 (La.App. 1st Cir. 1990), writ denied, 573 So.2d 1136 (La. 1991); Frazier v. Freeman, 481 So.2d 184 (La.App. 1st Cir. 1985); Asian International Ltd. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 435 So.2d 1058 (La.App. 1st Cir. 1983). Summary judgments are not favored, and any reasonable doubt should be resolved against the mover. Robertson v. Our Lady of the Lake Regional Medical Center, 574 So.2d at 385; Dupuy v. Gonday, 450 So.2d 1014 (La.App. 1st Cir. 1984). In determining whether material issues have in fact been disposed of, any doubt is to be resolved against granting the summary judgment and in favor of trial on the merits. Robertson v. Our Lady of the Lake Regional Medical Center, 574 So.2d at 385; Sanders v. Hercules Sheet Metal Inc., 385 So.2d 772, 775 (La. 1980); Chaisson v. Domingue, 372 So.2d at 1227. The court should not seek to determine whether it is likely that the mover will prevail on the merits, but rather whether there is an issue of material fact. Insley v. Titan Insurance Company, 589 So.2d 10 (La.App. 1st Cir. 1991); Good v. Fisk, 524 So.2d 203 (La.App. 4th Cir. 1988). I would find all issues of material fact have not been resolved, and that therefore, summary judgment was not appropriately granted.
Accordingly, I will dissent from the majority opinion affirming summary judgment in this case.