### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 30544

LEONARD BROUSSARD; BERTHA THIBODEAUX,
Plaintiffs

- Appellants
v. DOW CHEMICAL COMPANY,
Defendant

- Appellee

Appeal from the United States District Court for the Western D istrict of Louisiana USDC No. 2: 11

- CV

- 01446

Before BARKSDALE, PRADO, and HAYNES, Circuit Judges. PER CURIAM: * Leonard Broussard and Bertha Thibodeaux filed this diversity action against The Dow Chemical Company and other entities for damages caused by
t heir activities on land owned by Br oussard and Thibodeaux

. S ummary judgment was awarded Dow on whether Broussard had a right to sue for damages to land acquired after the alleged damage occur red and the mineral lease had expired, and where th at lease did not contain a stipulation pour autrui (third

- party beneficiary)

. ( The district court noted Thibodeaux

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 30, 2013 Lyle W. Cayce Clerk Case: 13-30544 Document: 00512483973 Page: 1 Date Filed: 12/30/2013No. 13

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disclaimed any interest i n the land on which Dow had conducted its operations ; she appears with Broussard , however, on the notice of appeal and seems to assert a claim here

. But, b ecause Thibodeaux , in district court, disclaimed an interest in the land at issue, only Broussard ’s claims are addressed

. ) After Broussard appealed the summary judgment in January 2013, his unopposed moti on to dismiss his appeal without prejudice was granted. T he district court then severed the claims against Dow in April 2013, and Broussard appealed on 30 April. Broussard challe nges the summary judgment , including claiming the district court erred in not allowing him to present parol evidence regarding the intent of prior owners to transfer the right to sue in the sales contracts

. Essentially for the reasons stated by the distri ct court, the judgment is AFFIRMED. I. In August 1963, Agnes Benoit Harpin and Anthony H. Harpin signed a

m ineral l ease with Dow , covering “that certain tract or parcel of land containing 51 acres, more or less, being situated in Section 13, Township 12 South, Range 4 West

. . . .” The lease provided in cl auses eight and nine: 8. The Lessee shall be responsible for all damages of Lessor caused by Lessee’s operations. 9. All provisions hereof shall extend to and bind the successors and assigns (in whole or in part) of Lessor and Lessee; but regardless of any actual constructive notice on the part of Lessee, no change in the ownership of the land or any interest therein or change in the capacity or status of Lessor, either resulting from sale, inheritance, interdiction, emancipation, attainment of majority, or otherwise, shall impose any additional burden on Lessee . . .

.

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Dow drilled one well on th e property. Beginning in De cember 1966, that well produc ed natural gas before it was plugged and abandoned in May 1975. No further operations were conducted pursuant t o the l ease ; and Dow released all acreage subject to the l ease in February 1977

. In March 2000, after her father, Anthony H. Harpin, died, Julie Kathryn Harpin Smith (who later marr ied and took the surname Sorrel l ) became owner of the land via j udgment of p ossession. It stated Sorrell was “recognized as the sole owner and [] sent into po ssession of decedent’s separate property”, which included the land in issue

. Sorrell immediately sold the tract to her aunt and uncle, the Fuseliers

. The private a ct of s ale, in which Sorrell conveyed the land to the Fuseliers, states in pertinent part: [Sorrell] does by these presents Grant, Bargain, Sell, Assign, Transfer, Convey, Setover and Deliver unto [Fuseliers] all and singular the following described property, together with all the buildings, improvements, appurtenances and privileges thereon
a nd thereto belonging, or in anywise appertaining . . . [and] . . . with full and general warranty of title, and with full subrogation to all of the rights and actions in warranty against any and all former owners and vendors. By cash deed in August 2009, the Fuseliers sold the land to Appell ant, B r oussard, and Jenny Lee Sonnier Broussard. The deed contains the following language , which provided

a complete transfer and subrogation of all rights (including all rights to claim and sue for damages of any nature relating to or concerning the property and any other right or action related to the previous ownership of the property) and actions, whether liberative or acquisitive, against all former owners and/or proprietors of the property, any tenants who use the prope rty with or without permission . . .

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[and granted ]

. . . full subrogation to all the rights of warranty and all other rights as held herein by [Fuseliers].
In June 2012, S orrell provided a declaration, pursuant to 28 U.S.C

. § 1746 (unsworn declarations under penalty of perjury) , stating : “ W hen I inherited the Property, I inherited and was assigned all of the personal rights held by my father, including any rights my father had against any prior owners of mineral leases on the Property”. Sorrell continued : “I sold and conveyed [the land] to [ the Fuseliers, and] . . . the only right that I did not co[n]vey was a 50% interest in the mineral rights on the property. No other rights, privileges, or prior assignments were held back or otherwise excluded

— expressly or by implication, from the conveyance”. William Fuselier , her uncle, also provided a declaration , stating : “ W hen I purchased said land, I believed that I purchased all rights associated with the land, including any personal rights and privile ges associated with the land”. On 28 June 2011, this action was filed in Louisiana state court, against Dow and other entities . Broussard sought damages, claiming , inter alia, defendants’ conduct and activities : unreasonably deprived him of the use of his property; constituted a private nuisance; violated the good faith requirement inherent in both the mineral lease and right

- of

- way agreements between the prior owners of the land and d efendants; represented a wan ton or reckless disregard for public safety; and constituted a trespass. Several defendants gave notice of removal on 9 August 2011, to which D ow consented

. Dow moved for summary judgment in June 2012, contending: Plaintiffs were not the owners of the property at the time the alleged damage to the property was inflicted by Dow, and therefore the subsequent purchaser doctrine applies to them. Plaintiffs do not have a personal right of action against Dow for damages.

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Further, Plaintiffs did not receive an express subrogation or assignment of the right to sue for damages from the former property owners. Summary judgment was awarded Dow that December. Broussard v. Dow Chem. Co. , No. 2:11

- CV

- 01446, 2012 WL 6042535 ( W.D. La. 3 Dec. 2012)

. In doing so, t he court structured its ruling in three sections: the conveyance , vel non , of the right to sue Dow , id. at *3

- 7 ; the applicability of the parol

evidence rule , id. at *7

- 9 ; and the validity , vel non , of Broussard’s reformation claim , id. at *9

. Regarding the first point, the court focused on the primary disagreement between the parties: whether the right to sue passed between Sorrell and the Fuseliers , and from the m to Broussard. Id. at *3, *6

- 7. Dow maintained the right could only transfer by express written assignment because the lease had terminated before the Fuseliers or Broussard bought the land. Id. at *3. According to Dow, the absence of such express language in the sales contract to the Fuseliers foreclosed the possibility of Broussar d ’s ever enjoying the right
to sue Dow

. Id

. Broussard countered Sorrell had properly assigned the right to sue to the Fuseliers, who then assigned that right to Broussard in the contract of sale. Id. Furthermore, Broussard maintained any ambiguity in the contracts of sale could be clarified by reference to parol evidence. Id. at *7. The district court considered relevant Louisiana case law, including Louisiana Supreme Court cases Eagle Pipe & Supply, Inc. v. Amerada Hess Corp. , 2010

- 2267 (La . 10/25/ 11) ; 79 So. 3d 246, reh ’ g denied ( 13 Jan. 2012) , and Prados v. S. Cent. Bell Tel. Co. , 329 So. 2d 744 (La. 1975) , as well as the Louisiana third circuit case Lejeune Bros., Inc. v. Goodrich Petroleum Co., LLC , 2006

- 1557 (La. App. 3 Cir. 11/28/07) ; 981 So. 2d 23 , writ denied , 2008

- 0298 (La. 4/4/08) ; 978 So. 2d 327

. Id. at *3

- 5

. Analogizing to the situation in Lejeune , where the court found previous landowners could not transfer the right to sue

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to an assignee when the lease had expired, the district court ruled Broussard could not have been assigned the right to sue Dow. Id. at *6. As for the third

- party

- beneficiary claim, the court considered paragraphs eight and nine of the mineral lease, analogized again to Lejeune, and ruled “the mineral lease indica tes that Dow’s liability will not go beyond the damages of the lessor ” and the language referring to rights passing to successors or assigns did not apply to either the Fuseliers or Broussard because neither was an assignee of the lease. Id. at *6

- 7 (emph asis in original). Because the right to sue is a person al right, the court reasoned, it must be expressly assigned and cannot be “implicitly conveyed”; therefore, in the absence of an express assignment, the court held Broussard could not receive the righ t to sue Dow for damages stemming from its activities and operations on the land. Id. at *7. Relying on its ruling on the first point, the court held parol evidence was in applicable where the subsequent

- purchaser rule required express assignment of the right to sue in the contract. Id. at *8. To allow parol evidence to subsequently inject the right to sue into contracts would have “potential[ly] far

- reaching consequences” and “essentially completely nullify the longstanding ‘express assignment’ requirement”. Id. T he third point is not at issue in this appeal. In any event, the court held Broussard could not bring a reformation action to reform the terms of the contract between Sorre l l and the Fuseliers to reflect an express subrog ation of the right to sue , because the ten

- year prescriptive period had passed. Id. at *9. II. Th e challenged s ummary judgment is reviewed de novo , applying the same standard as did the district court. E.g., Feist v. La

. , Dep ’ t of Justice, Office of the Atty. Gen. , 730 F.3d 450, 452 (5th Cir. 2013). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law”. F ED

. R. C IV

. P. 56 (a) . In determining whether to grant a motion for summary judgment, the court views the facts and evidence in the light most favorable to Broussard, the non

mov ant

. E.g., D ameware Dev., LLC v. Am. Gen. Life Ins. Co. , 688 F.3d 203, 20 6

- 0 7 (5th Cir. 2012). III. Having reviewed the record and briefs , and listened to oral argument, and essentially for the reasons stated by the district court in its well

- reasoned opinion, the judgment is AFFIRMED

.

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