The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
11-1133
ORACLE 1031 EXCHANGE, LLC, ET AL.
VERSUS
LEONARD BOURQUE, ET AL.
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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 89927
HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE
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JOHN D. SAUNDERS
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders,
and J. David Painter, Judges.
AFFIRMED
Daniel C. Hughes
Attorney at Law
126 Heymann Blvd.
Lafayette, LA 70503
(337) 237-6566
COUNSEL FOR PLAINTIFF APPELLANT:
Oracle 1031 Exchange, LLC
Delphi Oil, Inc.
Brett Page Furr
Taylor, Porter, Brooks
P. O. Box 2471
Baton Rouge, LA 70821-2471
(225) 387-3221
COUNSEL FOR PLAINTIFF APPELLANT:
Oracle 1031 Exchange, LLC
Delphi Oil, Inc.
George Andrew Veazey
Huval, Veazey, etc
P. O. Box 80948
Lafayette, LA 70598-0948
(337) 234-5350
COUNSEL FOR DEFENDANT APPELLEE:
Leonard Bourque, et al.
Edward D. Hughes
Taylor, Porter, Brooks
P. O. Box 2471
Baton Rouge, LA 70821
(225) 387-3221
COUNSEL FOR PLAINTIFF APPELLANT:
Oracle 1031 Exchange, LLC
Delphi Oil, Inc.
SAUNDERS, Judge.
This is a mineral royalties case where a group of royalty owners answered a
concursus with a reconventional and third party demand for penalties and
attorney’s fees under the Louisiana Mineral Code against the assigned lessee of the
oil leases, the oil well operator, and the oil well’s contract driller. The trial court
adjudged that the lessee, operator, and contract driller, in solido, owed the royalty
owners penalties in the amount of double damages of the outstanding royalties and
attorney’s fees.
The lessee, operator, and contract driller appeal the trial court’s judgment.
The operator and contract driller assert that they could not be held liable in
judgment to the royalty owners under the leases, as they were not party to those
leases. All three contend that their actions did not warrant punishment under
La.R.S. 37:139 and that the amount of attorney’s fees awarded to the royalty
owners was unreasonable. We affirm.
FACTS AND PROCEDURAL HISTORY:
In May 2007, Oracle 1031 Exchange, LLC (“Exchange”), Delphi Oil, Inc.
(“Delphi”), and Oracle Oil, LLC (“Oracle”) (collectively “appellants”), identified a
potential oil and gas prospect in the Lac Blanc Field in Vermilion Parish,
Louisiana. Leonard Bourque, Margarite Connor Bourque, G&G Management,
LLC, Gerald Patrick Veazey, Jane Lucille Miller Veazey, Debra Ann Veazey
Ebner, Neil Thomas Veazey, Donnie L. Veazey, Jacob Glen Veazey, Jean Bouse,
Daniel J. Duhon, Paul F. Duhon, Charles P. Duhon, Madeline Zelda Choate
Vaughan, Roberta Veazey Granberry, Mona Rae Vincent Hebert, Lanny Choate,
GCL Investments, Vea-See Properties, LLC, Petro Pig, LLC, Bo & B LLC, Oh-
Well, LLC, and LMCD & Family Royalties, LLC. (collectively “the royalty
owners”) were all parties who had royalty interests in the Lucille B. Broussard No.
1 Well that was eventually created from the identified prospect in the Lac Blanc
Field.
Mike Veazey, Jim Veazey, and Robert Nicholson (“the Veazey group”)
entered into leases with the royalty owners for their royalty interests. Thereafter,
those leases were assigned to Exchange.
In September 2007, Oracle began drilling the well. The well spudded on
November 8, 2007. By April 2008, the well produced 725.54 barrels of oil. This
oil was sold to Plains Marketing, L.P. Oracle received a net sum of $68,452.42.
By June 2008, the well produced an additional 184.24 barrels of oil that sold for a
net sum of $20,932.09.
On August 5, 2008, Delphi paid the Vermilion Parish School Board a total
of $640.12 for the royalties the well produced. No other royalty owner was paid
from the well in 2008.
On January 12, 2009, counsel for the royalty owners sent letters to Oracle,
Delphi, and Exchange demanding payment for all royalties earned. In response, on
February 12, 2009, Exchange filed a petition for concursus. Thereafter, Oracle
deposited $18,897.00 into the court’s registry. The royalty owners answered the
concursus and also filed a reconventional demand against Exchange and a third
party demand against Delphi and Oracle for penalties and attorney’s fees under the
Louisiana Mineral Code.
On February 2, 2011, the trial court ruled that even though the royalty
payments had now been paid, under La.R.S. 31:139, the royalty owners were
entitled to, from appellants, damages of double the amount of royalties due,
interest of the sum from the date due, and reasonable attorney’s fees to be
determined in a separate, further proceeding. Further, the trial court ruled that the
royalty owners were not entitled to dissolution of the leases and that costs were to
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be paid by appellants. After a hearing for the purpose of determining reasonable
attorney’s fees, on April 12, 2011, the trial court found that the royalty owners
were entitled to reasonable attorney’s fees of $30,502.50 and costs of $2,607.59 in
which appellants were liable unto them in solido. Appellants, after being denied a
motion for new trial, timely filed this appeal.
ASSIGNMENTS OF ERROR:
1. The trial court erred in casting Delphi and Oracle in judgment for penalties
and attorney’s fees despite no contractual basis for any such obligation.
2. The trial court erred in finding that Exchange’s filing a petition for
concursus to deposit funds in the registry of the court in response to the
royalty owners’ demand was unreasonable and/or willful.
3. The trial court erred in awarding an unreasonable amount of attorney’s fees
under Louisiana law.
ASSIGNMENT OF ERROR NUMBER ONE:
Delphi and Oracle contend that the trial court erred in casting them in
judgment for penalties and attorney’s fees despite no contractual basis for any such
obligation. We find no merit to this contention.
Dephi and Oracle’s assignment of error posits a question of law as to
whether the trial court was legally correct in casting them in judgment for penalties
and attorney’s fees under La.R.S. 31:137 et seq. Questions of law are reviewed de
novo. McFadden v. Import One, Inc., 10-952 (La.App. 3 Cir. 2/9/11), 56 So.3d
1212.
In Louisiana, corporations are generally recognized as separate
entities. However, the legal fiction of a distinct corporate entity may
be disregarded when a corporation is so organized and controlled as to
make it merely an instrumentality or adjunct of another corporation. If
one corporation is wholly under the control of another, the fact that it
is a separate entity does not relieve the latter from liability. In such an
instance, the former corporation is merely an alter ego or a business
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conduit of the latter. Green v. Champion Insurance Company, 577
So.2d 249, 257 (La.App. 1st Cir.), writ denied, 580 So.2d 668
(La.1991).
Grayson v. R.B. Ammon and Assoc., Inc., 99-2597, p. 14 (La.App. 1 Cir. 11/3/00),
778 So.2d 1, 16-17, writ denied, 00-3270, (La. 1/26/01), 782 So.2d 1026 and writ
denied, 00-3311 (La. 1/26/01) 782 So.2d 1027.
Statutes authorizing imposition of penalties are strictly construed. Guillory v.
Lee, 09-75 (La. 6/26/09), 16 So.3d 1104. Generally, in Louisiana, attorney fees are
not allowed unless authorized by statute or provided for by contract. Sharbono v.
Steve Lang & Son Loggers, 97-110 (La. 7/1/97), 696 So.2d 1382.
Louisiana Revised Statutes 31:139 states (emphasis added):
If the lessee pays the royalties due in response to the required
notice, the remedy of dissolution shall be unavailable unless it be
found that the original failure to pay was fraudulent. The court may
award as damages double the amount of royalties due, interest on that
sum from the date due, and a reasonable attorney’s fee, provided the
original failure to pay royalties was either fraudulent or willful and
without reasonable grounds. In all other cases, such as mere oversight
or neglect, damages shall be limited to interest on the royalties
computed from the date due, and a reasonable attorney’s fee if such
interest is not paid within thirty days of written demand therefor.
In the case before us, the statutory basis for the trial court to award the
royalty owners penalties and attorney’s fees is La.R.S. 31:139. It only allows for a
lessee to be cast with penalties and attorney’s fees. Delphi and Oracle contend that
neither are lessees, because it was Exchange that was assigned the pertinent leases.
Delphi and Oracle are correct that it was only Exchange that was assigned
the leases and was the lessee. However, it is clear from the judgment reached by
the trial court that it found Exchange was the alter ego of both Delphi and Oracle.
The trial court can only rule as it did if it viewed the three entities as a singular
entity conducting a single business enterprise. Given that it deemed the three
liable for penalties and attorney’s fees in solido, it must have reached this result.
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Whether entities are a single business enterprise is a question of fact that is
subject to the manifest error standard of review. Holly & Smith Architects, Inc. v.
St. Helena Congregate Facility, 03-481 (La.App. 1 Cir. 2/23/04), 872 So.2d 1147.
A reasonable basis exists in the record for the trial court’s determination that
Delphi, Oracle, and Exchange were a single business enterprise. Delphi and/or
Oracle, not Exchange, paid royalties from the well to the Vermillion Parish School
Board. Delphi and/or Oracle, not Exchange, deposited the money in the registry of
the court for the concursus proceeding. Delphi and/or Oracle, not Exchange,
received the checks for selling the oil that the well produced. Delphi and/or Oracle,
not Exchange, paid the taxes of the sale of the oil that the well produced. Finally,
all three entities are headed by the same person, Robert Brooks. Seemingly in line
with the set-up of these entities, Delphi and Oracle have filed this appeal
suspensively, suggesting that they are financially solvent, while Exchange filed
devolutively, which could be taken to suggest otherwise.
Accordingly, we find no error manifest error by the trial court in determining
that Delphi, Oracle, and Exchange are a single business enterprise. It is clear that
Exchange, as assignee of the leases, can be held liable for penalties and attorney’s
fees under La.R.S. 31:139. Thus, it is legally correct that Delphi and Oracle, when
treated as a single business enterprise with Exchange, can be found liable in solido
with Exchange for penalties and attorney’s fees under La.R.S. 31:137 et seq.
ASSIGNMENT OF ERROR NUMBER TWO:
The appellants assert that the trial court erred in finding that their filing a
petition for concursus to deposit funds in the registry of the court in response to the
royalty owners’ demand was unreasonable and/or willful. We find no merit to this
argument.
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The trial court awarded the royalty owners a penalty of double of the
royalties owed and attorney’s fees under La.R.S. 37:139. The relevant language of
La.R.S. 37:139 (emphasis added) is that, “[t]he court may award as damages
double the amount of royalties due, interest on that sum from the date due, and a
reasonable attorney’s fee, provided the original failure to pay royalties was either
fraudulent or willful and without reasonable grounds.” The legislature’s use of
“may” in La.R.S. 37:139 is explicit that the trial court’s award of double damages
and attorney’s fees is discretionary. Appellate review of such discretionary
decisions is conducted under the “abuse of discretion” standard of review.
Generally, an abuse of discretion results from a conclusion reached
capriciously or in an arbitrary manner. The word “arbitrary” implies a
disregard of evidence or of the proper weight thereof. A conclusion is
“capricious” when there is no substantial evidence to support it or the
conclusion is contrary to substantiated competent evidence.
Jones v. LSU/EA Conway Med. Ctr., 45,410, p. 6 (La.App. 2 Cir. 8/11/10), 46
So.3d 205, 210 (citing Burst. v. Board of Com’rs, Port of New Orleans, 93-2069,
(La.App 1 Cir. 10/7/94), 646 So.2d 955).
Here, appellants argue that their use of a concursus proceeding renders the
trial court’s finding that they were “either fraudulent or willful and without
reasonable grounds” unwarranted. The appellants’ argument is misguided.
In order to potentially award the discretionary penalty and attorney’s fees
under La.R.S. 37:139, the trial court did not have to find that the appellants’ filing
of a concursus was “unreasonable and/or willful.” The trial court merely had to
find that the appellants’ actions in delaying payment of royalties to their owners
were “either fraudulent or willful and without reasonable grounds.” La.R.S.
37:139. Such a finding is a finding of fact and reviewed by the manifest error
standard of review.
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As such, the stated assignment of error raised by appellants does not address
the issue correctly. In brief, however, appellants make two arguments as to why
the delay in payment of royalties from the time the oil was extracted to payment of
the royalties in the concursus proceeding was reasonable.
Their first argument is that they were not sure that the minimal amount of oil
extracted triggered a need for them to pay royalties. Appellants deemed this
minimal amount of oil as, potentially, “test oil.” This contention borders on
disingenuous.
Appellants certainly saw this extraction of a minimal amount of oil to trigger
its need to pay another royalty owner, the Vermilion Parish School Board. Thus,
the trial court was justified in finding that their claim of uncertainty of whether this
oil was “test oil” has no merit.
Their second argument is that there were title problems with the land owned
by the royalty owners. We find no merit to this argument.
Louisiana Revised Statute 37:138.1(D) precludes the lack of a division order
as a reasonable basis for withholding payment of royalties where it states, in
pertinent part: “[i]f the lessee fails to pay royalties solely because his lessor has
not executed a division order as defined in this Article, the court shall award as
damages double the amount of royalties due, legal interest on that sum from the
date due, and reasonable attorney’s fees.” Thus, the portion of appellants’
argument related to a lack of division order is without merit.
Further, according to appellants, these title issues placed them “in a curious
position: pay royalties to persons it was unsure had proper title or file a Petition for
Concursus to protect the moneys until those issues could be resolved.” This
characterization made by appellants is not well founded.
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Appellants, if they were unsure of to whom they owed how much royalties,
could have filed for the concursus proceeding prior to being prompted to take
action by the royalty owners’ letter demanding payment. It is certain that
appellants knew they had to pay someone, and it is clear that they chose not do to
so until prompted. Accordingly, we find no manifest error made by the trial court
in determining that appellants acted “either fraudulent or willful and without
reasonable grounds.” La.R.S. 37:139.
ASSIGNMENT OF ERROR NUMBER THREE:
In their final assignment of error, appellants contend that the trial court erred
in awarding an unreasonable amount of attorney’s fees under Louisiana law. This
contention lacks merit.
The amount of attorney’s fees rests largely within the discretion of the trier
of fact and should not be disturbed unless unreasonable or manifestly erroneous.
Ardoin v. Kipling Korner Grocery, 02-1372 (La.App. 3 Cir. 3/5/03), 839 So.2d
1167.
Factors to be taken into consideration in determining the
reasonableness of attorney fees include: (1) the ultimate result
obtained; (2) the responsibility incurred; (3) the importance of the
litigation; (4) amount of money involved; (5) extent and character of
the work performed; (6) legal knowledge, attainment, and skill of the
attorneys; (7) number of appearances made; (8) intricacies of the facts
involved; (9) diligence and skill of counsel; and (10) the court's own
knowledge.
State, DOTD v. Williamson, 597 So.2d 439, 442 (La.1992) (footnote and citations
omitted).
Louisiana Revised Statute 37:139 authorizes a trial court to award a
“reasonable” attorney’s fee. This authorization of the trial court to award
attorney’s fees results from actions that are “either fraudulent or willful and
without reasonable grounds” La.R.S. 37:139. We find it clear that the award of
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attorney’s fees under this statute is penal in nature. As such, the value of the
attorney’s fees does not need to be proven. See Dowden v. Commonwealth Life Ins.
Co., 407 So.2d 1355 (La.App 3 Cir. 1981); Fontenot v. Town of Kinder, 377 So.2d
554 (La.App. 3 Cir. 1979); Trahan v. Rockwood Ins. Co., 284 So.2d 659 (La.App.
3 Cir. 1973), writ denied, 379 So.2d 1102 (1980).
Moreover, it is clear from the record that the trial court’s decision to award
the amount of attorney’s fees that it did was given extensive consideration. At a
hearing specifically had to determine the amount of reasonable attorney’s fees, it
stated the following:
[W]hen the award is substantially smaller than the amount
asked for in attorney fees in this case . . . you would say, [“]well, wait
a minute, this doesn’t make sense, to award more attorney fees than
was actually awarded after the trial.[“] But, of course, understand
well, that at the trial, after listening to the evidence, the Court was
satisfied that the case had, in fact, been proven, and in order to enforce
that right, required that expenditure.”
Finally, there exists a reasonable basis in the record for the amount of
attorney’s fees awarded. Present in the record are the engagement letters from
counsel for the royalty owners delineating that an hourly rate of $225.00 would be
charged. Appellants’ counsel stipulated that this rate is reasonable. Also included
in the record is an exhibit submitted by counsel for the royalty owners detailing the
hours worked in prosecuting the case. The amount of attorney’s fees awarded by
the trial court equals the number of hours worked indicated in that exhibit
multiplied by the reasonable hourly rate.
Accordingly, we find no merit to appellants’ assignment of error. After a
thorough review of the record, we find a reasonable basis for the amount of
attorney’s fees awarded in this case.
ANCILLARY MATTER:
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The royalty owners request additional attorney’s fees for work done on
appeal. We grant this request.
“Generally, when an award for attorney’s fees is granted at the trial level,
additional attorney’s fees are proper for work done on appeal. This is to keep the
appellate judgment consistent with the underlying judgment.” Wilczewski v.
Brookshire Grocery Store, 08-718, p. 18 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214,
1226, writ denied, 09-456 (La.4/13/09), 5 So.3d 170.
Here, the royalty owners were granted attorney’s fees below. After
reviewing the record, given the efforts to successfully defend the judgment
awarding the royalty owners penalties and attorney’s fees, we award $5,000.00 in
additional attorney’s fees for work done on appeal.
CONCLUSION:
Delphi Oil, Inc. and Oracle Oil, LLC raise three assignments of error.
Oracle 1031 Exchange, LLC joins in the second two of these assignments of error.
We find no merit to any of the assignments and affirm the trial court’s judgment in
its entirety. Further, we award $5,000.00 in attorney’s fees for work done on
appeal to Leonard Bourque, Margarite Connor Bourque, G&G Management, LLC,
Gerald Patrick Veazey, Jane Lucille Miller Veazey, Debra Ann Veazey Ebner,
Neil Thomas Veazey, Donnie L. Veazey, Jacob Glen Veazey, Jean Bouse, Daniel J.
Duhon, Paul F. Duhon, Charles P. Duhon, Madeline Zelda Choate Vaughan,
Roberta Veazey Granberry, Mona Rae Vincent Hebert, Lanny Choate, GCL
Investments, Vea-See Properties, LLC, Petro Pig, LLC, Bo & B LLC, Oh-Well,
LLC, and LMCD & Family Royalties, LLC. We assess all costs of these
proceedings to Oracle 1031 Exchange, LLC, Delphi Oil, Inc., and Oracle Oil, LLC.
AFFIRMED.
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