### STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT DOCKET NUMBER 2021CA0561 SUCCESSION OF LUCILLE WATIS PATIN, PAMELA SUE PATIN QUANTZ, CHARLEEN PATIN TAYLOR,

REBEL KELLEY CAPLINGER, DENIS CURTIN KELLEY, II, DORCAS MARIE KELLEY, KERRY WATTS KELLEY, AND PATIN-KELLEY, LLC VERSUS BREAZEALE, SACHSE & 

### WILSON, L.L.P., DAVID M. CHARLTON, AND XYZ INSURANCE COMPANY ['XYZ") 

## MAY 

# o9

## 2022: Decision Rendered:

____ _ 

## * * * * * On Appeal from the 19th Judicial District Court East Baton Rouge Parish, Louisiana Trial Court No. 666,011 The Honorable Timothy E. Kelley, Judge Presiding

Scott Webre Whitney S. Ikerd Lafayette, Louisiana

Victor L. Marcello Baton Rouge, Louisiana

Heather S. Duplantis Kevin W. Welsh Baton Rouge, Louisiana

Melissa M. Lessell Beverly L. Delaune New Orleans, Louisiana 

## * * * * * Attorneys for Plaintiffs-Appellants, Succession of Lucille Watts Patin, Pamela Sue Patin Quantz, Charleen Patin Taylor, Rebel Kelley Caplinger, Denis Curtin Kelley, II, Dorcas Marie Kelley, Kerry Watts Kelley, and Patin-Kelley, LLC

Attorneys for Defendants-Appellees, Breazeale, Sachse & 

### Wilson, LLP and David M. Charlton Attorneys for Defendants-Appellees, Endurance American Specialty Insurance, Scottsdale Insurance Company, and Aspen Specialty Insurance 

### BEFORE: McDONALD, MCCLENDON,



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### J. Inthis legal malpractice action, plaintiffs appeal ajudgment granting an exception of

no cause of action filed by the defendant attorneys and their insurers, dismissing plaintiffs' claims with prejudice, and denying plaintiffs' motion for leave to file amended pleadings beyond their second supplemental and amended petition for damages. After review, we reverse. FACTUAL AND PROCEDURAL BACKGROUND In 1998, Lucille Watts Patin retained attorney David M. Charlton of the law firm, Breazeale, Sachse 

### &Wilson, LLP (BSW), to form a limited liability company known as PatinKelley, LLC (PKLLC). Mr. Charlton also handled Ms. Patin's legal matters related to the management of her property and the planning of her estate. As part of that work, Mr. Charlton drafted documents whereby Ms. Patin sold her 17/181h ownership interest - both surface and mineral rights - in an approximate 382-acre tract of land in Pointe Coupee Parish (the property) to PKLLC. In exchange for the property, Ms. Patin received a 97% membership interest in PKLLC. 1 The sale between Ms. Patin and PKLLC was recorded in the conveyance records on December 28, 1998. In2006, Ms. Patin and PKLLC executed an Act ofCorrection to the 1998 sale, because itwas discovered that the 1998 sale did not include a mineral servitude in Ms. Patin's favor, 

## even though the parties had intended that Ms. Patin reserve all ofthe mineral rights when she sold the property to PKLLC. 2 Mr. Charlton prepared the Act ofCorrection to correct the

error in the 1998 act ofsale. The Act ofCorrection contained language reserving a mineral servitude on the property to Ms. Patin and stating that PKLLC disclaimed any and all ownershiptothose mineral rights. Two witnesses signed theAct ofCorrection, and Ms. Patin signed on her own behalf, as well as in her capacity as the PKLLC's managing member. Mr. Charlton notarized the Act ofCorrection, and itwas recorded in the conveyance records.

1 It is undisputed that, atsome point, Ms. Patin became the owner of 100% of PKLLC.

2 In the 2006 Act of Correction, Ms. Patin reserved "all minerals in, on and under, and all mineral rights pertaining to"the property sold to PKLLC. As discussed later herein, an owner's sale of land with a reservation of mineral rights creates a mineral servitude. See Ohio Oil Co. v. Ferguson, 213 La. 183, 34 So.2d 746, 752 (1946); Indigo Minerals, LLC v. Pardee Minerals; LLC, 45,160 (La. App. 2 Cir. 5/28/10), 37 So.3d 1122, 1128, writs denied, 10-1669, 10-1677 (La. 10/8/10), 46 So.3d 1274; SEMO, Inc. v. Bd. OfCom'rs forAtchafalaya Basin Levee Dist., 07-2571 (La. App. 1 Cir. 6/6/08), 993 So.2d 222, 226. 2Ms. Patin died testate approximately six years later on March 13, 2012, leaving six legatees: Pamela Sue Patin Quantz, Charleen Patin Taylor, Rebel Kelley Caplinger, Denis Curtin Kelley, II, Dorcas Marie Kelley, and Kerry Watts Kelley (the Patin legatees). In her testament, Ms. Patin appointed Ms. Quantz, Ms. Taylor, and Ms. Caplinger as co-executrixes of her estate. Later, Ms. Caplinger was appointed as PKLLC's manager. Mr. Charlton was retained to serve as legal counsel for Ms. Patin's succession and PKLLC. In 2015, the Patin legatees consulted Mr. Charlton regarding a proposed sale ofthe property to Steven W. Kent, II, and Jana Spillman Kent. The Patin legatees communicated to Mr. Charlton that they specifically wanted to protect the mineral servitude previously reserved by Ms. Patin and to extend it for 10 years. After Mr. Charlton participated in drafting and/or reviewing the proposed sale documents, he assured the Patin legatees that those documents did retain their mineral servitude for 10 years. Ms. Patin's succession and PKLLC sold the property to the Kents on February 11, 2015, and the sale was recorded in the conveyance records the next day. In late 2017, multiple oil and gas companies approached the Patin legatees with interest in leasing the property for exploration; however, after conducting a title search, these entities "backed 

### off" and told the Patin legatees that the mineral servitude had not been extended for 10 years afterthe 2015 sale ofthe property to the Kents and would soon prescribe from nonuse. The Patin legatees soughtcounsel from Mr. Charlton, who confirmed thatthe 2015 sale did not extend the mineral servitude for 10 years and the servitude would extinguish in 2019, if not interrupted by proper oil and gas explorations before that time. 3 According to the Patin legatees, Mr. Charlton did not thereafter respond to them about the mineral servitude ownership. On February 5, 2018, the Patin legatees and PKLLC (the Patin plaintiffs) filed this legal malpractice suitagainst Mr. Charlton and BSW, alleging that Mr. Charlton had breached his obligation to properly handle their legal matters and that BSW was vicariously liable. They further alleged that Mr. Charlton had not taken appropriate steps to preserve their

3 A mineral servitude is extinguished by prescription resulting from 10 years' nonuse. La. R.S. 31:27. Prescription of nonuse commences from the date on which the mineral servitude is created but is interrupted by good faith operations for the discovery and production of minerals. See La. R.S. 31:28; 31:29; Indigo Minerals, LLC, 37 So.3d at 1128. The Patin legatees and PKLLC allege Mr. Charlton said the servitude would prescribe in 2019, whereas they allege itactually prescribed in December 2018. 3valuable mineral servitude forafull 10years afterthe 2015 sale ofthe propertytothe Kents, by having PKLLC execute a formal acknowledgement of the succession's servitude prior to the 2015 sale. The Patin plaintiffs also alleged that Mr. Charlton's breach of duty caused them grave damages, because they would prematurely lose their mineral servitude on the property to the Kents. Over a year later, the Patin plaintiffs filed a first supplemental and amended petition, adding Scottsdale Insurance Company, Endurance American Specialty Insurance Company,4 and Aspen Specialty Insurance Company, BSW's malpractice insurers,

as additional defendants. All defendants answered the suit. Mr. Charlton and BSW then filed an exception of

no cause of action. Essentially, these defendants maintained that PKLLC is the owner ofa mineral servitude on the property that, by operation of law, will not expire until 2025 atthe earliest. Therefore, Mr. Charlton and BSW argued that the Patin plaintiffs failed to plead facts sufficient to establish any damages resulting from Mr. Charlton's conduct. The malpractice insurersjoined in and adopted the exception of no cause ofaction. On December 3, 2019, the Patin plaintiffs filed a second supplemental and amended petition and reiterated that the 2006 Act ofCorrection between Ms. Patin and PKLLC was a valid authenticactthatcorrectly reserved a mineral servitudeto Ms. Patin,justas the parties always intended with the 1998 sale. The 2006 Act of Correction and the 1998 sale were both attached to the amended petition. The Patin plaintiffs also alleged thattheir efforts in 2018 to commence oil and gas operations on the property were unsuccessful, and the mineral servitude prescribed in December of that year, at a time when oil and gas exploration companies were "aggressively" leasing properties in the area.5 Aftera hearing, thetrial court ruled in favor ofthedefendants, granting the exception of no cause of action, and dismissing the Patin plaintiffs' petition with prejudice. The judgmentwas signed on January 11, 2021. In oral reasons, the trial court found that PKLLC owned the mineral servitude at least until 2025 and, thus, there was no damage from Mr. Charlton's alleged legal malpractice. The trial court further reasoned that the 2006 Act of

4 The first supplemental and amended petition erroneously listed this defendant's name as Sompo International/Endurance American Specialty Insurance Company.

5 The Patin plaintiffs also alleged that, in January 2019, the Louisiana Office of Conservation approved the creation ofa drilling and production unitthat included part ofthe property and, "on information and belief," a drilling company would commence operations in latter 2019. 4Correction did not create a mineral servitude in favor of Ms. Patin, because an act of correction could not make a substantive change to the 1998 sale ofthe property. Thus, according to the trial court, when PKLLC sold the property to the Kents in 2015, PKLLC still owned both the surface and mineral rights and had properly reserved a mineral servitude in the sale tothe Kents atthattime. Additionally, thetrial courtdid notallowthe Patin plaintiffs to amend their petition again, since they had already tried and failed to state a cause of action in prior amendments. The Patin plaintiffs appeal from the adversejudgment, claiming the trial court erred: (1) in granting the defendants'exception of no cause ofaction and failing to grantthe Patin plaintiffs leave to amend their petition, and (2) in finding the 2006 Act of Correction was invalid. 

### DISCUSSION Legal Malpractice Cause ofAction The peremptory exception of no cause ofaction questions whether the law affords the plaintiffany remedy underthe allegations ofthe petition. The exception is triable solely

on the face ofthe petition and any attached written exhibits. 

### La. C.C.P. arts. 853 and 931; Agrifund, LLCv. RadarRidge Planting Co., Inc., 19-1528 

### (La. 11/25/19), 283 So.3d 492 (per curiam); Baca v. Sabine RiverAuthority, 18-1046 

### (La. App. 1Cir. 12/27 /18), 271 So.3d 223, 227, writdenied, 19-0149 

### (La. 3/18/19), 267 So.3d 95. The court must presume all wellpleaded facts are true, must make all reasonable inferences in favor of the non-moving party, and must resolve any doubts in favor ofthe petition's sufficiency. The exceptor bears the burden of showing that the plaintiff has not stated a cause of action. The appellate court performs a de novo review of a district court's ruling on an exception of no cause of action. Cheniere Constr., Inc. v. State, Dep'tofRevenue 

### & Taxation, 19-1471 (La. App. 1 Cir. 9/18/20), 313 So.3d 992, 994, writdenied, 20-01194 (La. 12/8/20), 306 So.3d 431. Generally speaking, Louisiana law recognizes a legal malpractice cause of action in favor of a client injured as a result of his attorney's negligent representation. LeBlanc v. Alfred, 15-0397 

### (La. App. 1 Cir. 12/17/15), 185 So.3d 768, 774. To establish a legal malpractice cause ofaction, a plaintiff must demonstrate the existence ofan attorney-client relationship, negligent misrepresentation by the attorney, and loss caused by that

5negligence. 

### Id. The Patin plaintiffs have alleged facts proving an attorney-client relationship with Mr. Charlton and have also alleged facts tending to prove his negligent legal representation. The issue is whether the Patin plaintiffs have alleged sufficient facts to establish that Mr. Charlton's legal malpractice caused them loss. Whether the Patin plaintiffs have sufficiently alleged facts showing a loss hinges on the validity ofthe 2006 Act ofCorrection and whether itcreated a mineral servitude in favor of Ms. Patin. 

### Ifthe 2006 Act of Correction 

### wasvalid, as the Patin plaintiffs claim herein, then Ms. Patin's estate owned a mineral servitude on the property at the time ofthe 2015 sale to the Kents, but it prescribed from nonuse in 2018, because Mr. Charlton allegedly failed to properly preserve it, causing a valuable loss to the Patin plaintiffs. However, ifthe 2006 Act of Correction 

### was notvalid, as defendants claim herein, then PKLLC owned the minerals at the time of the 2015 sale, and its reservation of the mineral servitude for an additional 10 years in the 2015 sale document was valid until 2025, and the Patin plaintiffs have incurred no loss. 

### Reservation ofa Mineral Servitude The Louisiana Mineral Code, 

### La. R.S. 31:1, 

### etseq., is supplementary to the Louisiana Civil Code and is specifically applicable to the subject matter of mineral law. La. R.S. 31:2. Ifthe Mineral Code conflicts with the Civil Code orother laws, the Mineral Code shall prevail. 

### Id. Ifthe Mineral Code does not expressly or impliedly provide for a particular situation, the Civil Code orother applicable laws apply. 

### Id. SeeAmericanLungAssn of La., Inc. v. State, 93-0686 

### (La. App. 1 Cir. 11/10/94), 645 So.2d 1219, 1221-22, 

### writ denied, 95-0078 (La. 3/10/95), 650 So.2d 1182. A landowner may convey, reserve, or lease his right to explore and develop his land for production of minerals and to reduce them to possession. 

### La. R.S. 31:15; 

### Frey

### v. Amoco Production Co., 603 So.2d 166, 171 

### (La. 1992). The basic mineral rights that may be created by a landowner are the mineral servitude, the mineral royalty, and the mineral lease. La. R.S. 31:16. A mineral servitude is the right of enjoyment of land belonging to another for the purpose ofexploring for and producing minerals and reducing them to possession and ownership. La. R.S. 31:21. An owner's sale of land with a reservation of mineral rights creates a mineral servitude. 

### See Ohio OilCo. v. Ferguson, 213 

### La. 183, 203, 34 So.2d 746,

6752 (1946); SEMO, Inc. v. Bel. OfCom'rs forAtchafalaya Basin Levee Dist., 07-2571 

### (La. App. 1 Cir. 6/6/08), 993 So.2d 222, 226; Indigo Minerals, LLC v. Pardee Minerals, LLC, 45,160 

### (La. App. 2 Cir. 5/28/10), 37 So.3d 1122, 1128, writs denied, 10-1669, 10-1677 (La. 10/8/10), 46 So.3d 1274. Thus, when Ms. Patin sold the property to PKLLC in 1998, she desired to reserve a mineral servitude to herself; when the 1998 sale did not do so, the parties executed the 2006 Act ofCorrection to correct that omission. The Mineral Code does not dictate the form bywhich a landowner reserves a mineral servitude in an act ofsale. But, the Mineral Code does classify a mineral right, including a mineral servitude, as an incorporeal immovable. 

### La. R.S. 31:18; Steele 

### v. Denning, 456 So.2d 992, 998 (La. 1984); QualityEnvironmentalProcesses, Inc. v. IPPetroleum Co., Inc., 16-0230 (La. App. 1 Cir. 4/2/17), 219 So.3d 349, 372, writdenied, 17-00915 

### (La. 10/9/17), 227 So.3d 833. Underthe Civil Code, atransfer ofimmovable property must be by authentic act or byact under privatesignature. 

### La. 

### C.C. art. 1839; seePeironnetv. MatadorResources Co., 12-2292 (La. 6/28/13), 144 So.3d 791, 806-07. An authentic act is defined as awriting executed before a notary public or other officer authorized to perform that function, in the presence oftwo witnesses, and signed by each partywho executed it, by each witness, and by each notary public before whom it was executed. La. 

### C.C. art. 1833. Louisiana jurisprudence demonstrates that parties to an instrument transferring immovable property may reform that instrument by authentic act to correct substantive errors. See Blevins v. Manufacturers Record Pub. Co., 235 La. 708, 105 So.2d 392, 403 

### (La. 1957) (noting that when a deed conveying land contains an erroneous or ambiguous description, the parties to the deed are always permitted to reform the deed); Bourgeois v. Landry, 583 So.2d 36, 40 (La. App. 3 Cir.), writdenied, 587 So.2d 697 (La. 1991) (concluding a correction deed in authentic form was a valid act translative of mineral interests). These acts are sometimes referenced as "correction deeds." See Blevins, 105 So.2d at 403; Bourgeois, 583 So.2d at 40. The purpose of a correction deed is to admit mutual error and to change the original instrumentto conform to the true intentofthe parties. Robinette 

### v. Myers, 510 So.2d 1332, 1334 (La. App. 3 Cir. 1987). The correction deed is clearly valid as between the parties, and under certain circumstances where no prejudice occurs, it may be valid as to third persons. 

### Id.

7In this case, the 1998 sale failed to reserve a mineral servitude to Ms. Patin. To correct this failure, and to accomplish the "transfer of immovable property" that Ms. Patin and PKLLC originally intended, Ms. Patin and PKLLC executed the 2006 Act of Correction, which was a valid authentic act. Such act fulfilled the requirements of La. 

### C.C. arts. 1833 and 1839 and was in the nature ofa correction deed. Thus, in 2015, Ms. Patin's estate, not PKLLC, owned the mineral servitude. So, Mr. Charlton's alleged failure to properly preserve the estate's servitude, and his preparation of a sale document that reserved mineral rights to PKLLC, when PKLLC did not own the mineral servitude, resulting in the estate's loss of the servitude, and current ownership of minerals with the Kents, and not with the Patin legatees or PKLLC, supports a legal malpractice cause ofaction against him, BSW, and their insurers. In reaching the above conclusion, we expressly reject the defendants' position that the only "act of correction" recognized by Louisiana law is the notarial act of correction authorized by La. R.S. 35:2.1.6 Although we agree that La. R.S. 35:2.1 expressly limits the

use of a notarial act of correction to a 

## clerical error, such begs the question of how a 

## substantive error in a notarial act is corrected. That is, ifthe failure to reserve a mineral servitude in a sale of immovable property is a"substantive error," and such an error cannot be corrected by a notarial act ofcorrection under La. R.S. 35:2.1, then the parties who make such an error must have some legal means by which to correct that error. As explained above, because the Mineral Code does not dictate that means, we conclude La. 

### C.C. arts. 1833 and 1839 properly provide such a means herein. Ms. Patin and PKLLC's 2006 Act of

6 Louisiana Revised Statute 35:2.1 provides: A. (1) A clerical error in a notarial act affecting movable or immovable property or any other rights, corporeal or incorporeal, may be corrected by an act of correction executed by any ofthe following: (a}The person who was the notaryorone ofthe notaries before whom the actwas passed. (b) The notary who actually prepared the act containing the error. 

## * *

## * * (2)The act ofcorrection shall be executed before two witnesses and a notary public. B. The act ofcorrection executed in compliance with this Section shall be given retroactive effect to the date of recordation ofthe original act. However, the act of correction shall not prejudice the rights acquired by any third person before the act of correction is recorded wherethethird person reasonably relied on the original act. The act ofcorrection shall notalterthe true agreement and intent ofthe parties. C. A certified copy ofthe act of correction executed in compliance with this Section shall be deemed to be authentic for purposes ofexecutory process. D. This Section shall be in addition to other laws governing executory process. 8

### Correction was an authentic act between the parties, was proper underthe Civil Code, and validly reserved a mineral servitude to Ms. Patin. Although this authentic act was titled "Act ofCorrection," itwas 

### nota notarial act ofcorrection under La. R.S. 35:2.1. Accordingly, based on our 

### de novo review, accepting the Patin plaintiffs' well-pied allegations and exhibits attached to the petition as true, making reasonable inferences in their favor, and resolving all doubts in favor ofthe petitions' sufficiency, we conclude the Patin plaintiffs have stated a cause of action for legal malpractice against the defendants; further amendment ofthe pleadings is unnecessary. 

## seeCheniere Constr, Inc., 313 So.3d at 994. The trial court erred in granting the defendants' exception of no cause ofaction and dismissing the petition. 

### CONCLUSION For the assigned reasons, we reverse the January 11, 2021 judgment, granting the exception ofno cause ofaction filed by David M. Charlton, Breazeale, Sachse &

### Wilson, LLP, Scottsdale Insurance Company, Endurance American Specialty Insurance Company, and Aspen Specialty Insurance Company, and dismissing the legal malpractice claims asserted by the Succession of Lucille Watts Patin, Pamela Sue Patin Quantz, Charleen Patin Taylor, Rebel Kelley Caplinger, Denis Curtin Kelley, II, Dorcas Marie Kelley, Kerry Watts Kelley, and Patin-Kelley, LLC. We assess costs of this appeal to David M. Charlton, Breazeale, Sachse & 

### Wilson, LLP, Scottsdale Insurance Company, Endurance American Specialty Insurance Company, and Aspen Specialty Insurance Company. REVERSED.

9

## STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2021CA0561 SUCCESSION OF LUCILLE WATTS PATIN, ETAL. VERSUS BREAZEALE, SACHSE & 

## WILSON, L.L.P., ETAL.

# ~OLFE, J., Dissents and 

### Assigns Reasons. 

### I respectfully dissent in this matter and would affirm the district court's judgment sustaining the defendants' peremptory exception raising the objection of

no cause ofaction and dismissing the legal malpractice claims assertedbythe Patin plaintiffs. It

### is my opinionthatthe 2006 "ActofCorrection"purportingto correct a "scrivener's error" in the legal description ofthe property set forth in the 1998 conveyance is invalid, as the districtcourtproperly determined. Based upon my 

### de nova review ofthe petitions and the annexed documents, and accepting the alleged facts as true, it is beyond dispute that the Patin plaintiffs alleged facts tending to prove the existence ofan attorney-client relationship with the defendant law firm, BSW, and tending to prove Mr. Charlton's negligence. However, forthe followingreasons Ifind thatthePatinplaintiffs didnotallege facts necessaryto establishcausationofdamagesarising fromMr. Charlton'snegligence. The pertinent issue surrounding the causation of damages involves an examination ofthe validity ofthe 2006 Act ofCorrection and a determination as to whether it created a mineral rights servitude in favor ofMs. Patin. In 2006, Ms. Patin andthe LLC discoveredthatthe 1998 conveyance didnotreserve the mineral rights inthepropertytoMs. Patin. Whentheerrorwas discovered,theparties chose to executethe 2006 Act ofCorrection in an attempt to clarify thatMs. Patin owned

### the mineral rights and the LLC relinquished those rights in the property according to their true intent. To make a correction to an authentic act affecting immovable property that has been filed in the conveyance records, as was done with the 1998 conveyance,the legislature allows afiling ofan affidavitofcorrection completedby the notary before whom the authentic act was passed. Louisiana Revised Statutes 35:2.1 currently states, inpertinentpart and with emphasis added: A. (1) A clerical error in a notarial act affecting movable or immovable property or any other rights, corporeal or incorporeal, may be corrected by an act ofcorrection executed by any ofthe following: (a)The person who was the notary or one ofthe notaries before whom the actwas passed. (b)The notary who actually preparedthe act containingthe error. * * * (2) The act ofcorrection shall be executed before two witnesses and a notarypublic. B. Theactofcorrectionexecutedincompliancewiththis Sectionshall be given retroactive effectto the date ofrecordation ofthe original act. However, the act ofcorrection shall not prejudice the rights acquiredbyanythirdpersonbeforethe actofcorrectionisrecorded where the third person reasonably relied on the original act. The act ofcorrection shall not alterthetrue agreementand intentofthe parties. It

### is clear from the language ofthe statute that an affidavit ofcorrectionmay correct only a "clerical error," which is an errorresulting from a minor mistake or inadvertence and not from reasoningordetermination. SeeBlack'sLawDictionary (11th ed. 2019). Areservation ofmineralrights is a substantive change, notaminor mistake, clericalerror, orascrivener'serror. Theadditionofareservationofmineral rights changes the effect ofthe document in regard to the real rights held by the parties to the act. Petro-Chem Operating Company, Inc. v. Flat River Farms, L.L.C., 

### 51,212 (La. App. 2dCir. 3/1/17),

_ So.3d_,_,2017 WL 786868 *7, writs denied, 2017-0564 and 2017-0562 (La. 6/5/17), 219 So.3d 338, 339. Additionally, the reservation ofmineral rights in the sale ofimmovable property is

2

### a substantive issuethatimplicatesthethoughtprocess and intentionofthepartiesto thetransaction. Thus, an actofcorrectioncannotbe usedto substantivelychange or correctthe omission ofamineral rights reservation. Id. The 2006 Act ofCorrection at issue specifically referenced a "scrivener's error" regarding the parties' intent. However, it is improper and invalid to use an actofcorrectionforthepurposeofchangingthereservation ofmineral rights, which is clearly not a simple scrivener's error. I further note thatin2006, when the Act of Correction was executed, La. R.S. 35:2.l(A) required that the act ofcorrection be "executed by the notary before two witnesses and 

### another notary public." (Emphasis added.) The 2006 Act of Correction did not comply with the requirements ofthe statute at thattime, because it was not executed before another notary public. Acts ofcorrection executed in improper form have no effect. See First Nat. Bank, USA v. DDS Const., LLC, 2011-1418 (La. 1/24/12), 91 So.3d 944, 955-956. Therefore, Iconcludethatthe districtcourtdidnoterrindetermining thatthe 2006 Act ofCorrectionwas invalid. TheLLC ownedthemineral and surfacerightsinthepropertyby virtue ofthe 1998 conveyance from Ms. Patin. Whenthe Kentspurchasedthe property from the LLC in 2015, the LLC continued to ownthe mineral rights because the act ofsale reserved amineral rights servitude in the LLC'sfavor. TheLLC may still enjoythe fruits ofthe mineral rights on the property until at least 2025, whenthe use ofthe mineral rights servitude will prescribe ifno good faith oil andgas explorationtakes place on the property before thattime. See La. R.S. 31 :27, La. R.S. 31:28, and La. R.S. 31 :29. 1 

### There is no damage to the Patin plaintiffs by the alleged negligent

1 Louisiana Revised Statutes 31 :27 provides, in pertinent part: "A mineral servitude is extinguished by: (!) prescription resulting from nonuse for ten years;" and Louisiana Revised Statutes31 :28 states, inpertinentpart: " Prescriptionofnonuse ofamineral servitudecommences from the date onwhich it iscreated." Additionally, La. R.S. 31 :29provides: "Theprescriptionof nonuserunningagainstamineral servitudeis interruptedbygoodfaithoperationsforthe discovery and productionofminerals."

3

### actions ofBSWandMr. Charlton, as they have not been forced to prematurely give up the mineral rights in the property. Thus, the Patin plaintiffs have not stated a viable cause ofaction for legal malpractice against BSWandMr. Charlton. Pursuantto La. Code Civ. P. art. 934, ifa petition fails to state a cognizable

cause ofaction and the grounds for the objection can be removed by amendment, the plaintiffs should be allowed to amend their demand. LeBlanc v. Alfred, 

### 2015- 0397 (La. App. 1st Cir. 12/17/15), 185 So.3d 768, 777. On the other hand, where the grounds fortheobjectioncannotbe soremoved,the districtcourtis notrequired to allow time to amend and the action shall be dismissed. Adams v. OwensCorning Fiberglas Corp., 

### 2004-1296 (La. App. 1st Cir. 9/23/05), 921 So.2d 972, 976, writ denied, 2005-2501 (La. 4/17/06), 926 So.2d 514. The decision to allow amendmentis withinthe sound discretion ofthe districtcourt. LeBlanc, 

### 185 So.3d at 777. In this case, the district court allowed two previous amendments to the petition,the secondtime overtheobjectionsofBSW. It

### is my opinion thatallowing further amendmentsbythePatinplaintiffsatthispointwouldmerelybeaninvitation to engage in speculative pleading. Thus, I would not disturb the district court's sound discretion in refusing a third attempt to amend the petition. See Allstate Vehicleand PropertyIns. 

### Co.v. AndrusRestoration,LLC, 

### 2019-1279(La. App. 1stCir. 9/21/20), 314 So.3d 51, 56. For these reasons, I respectfully dissent andwould affirm the district court's judgmentin its entirety.

4

### STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2021CA0561

SUCCESSION OF LUCILLE WATTS PATIN, PAMELA SUE PATIN QUANTZ, CHARLEEN PATIN TAYLOR,

REBEL KELLEY CAPLINGER, DENIS CURTIN KELLEY, II, DORCAS MARIE KELLEY, KERRY WATTS KELLEY, AND PATIN-KELLEY, LLC

# ~**~/\,** . BREAZEALE, SACHSE 

### & WILSON, L.L.P., DAVID M. 

# l**~1** 

# ij CHARLTON, AND XYZ INSURANCE COMPANY ("XYZ")

# r~· VERSUS



## ************************************************ McClendon,

### l., concurs in part and dissents in part. 

### In deciding an exception of no cause of action, we are guided by the well-settled principle that the function of an exception of no cause of action is to test the legal sufficiency ofthe petition by determining whether the law affords a remedy on the facts alleged in the pleading. Dodson 

### & Hooks, APLC v. Louisiana Community Development Capital Fund, Inc., 

### 2020-01002 (La. 2/17/21), 310 So.3d 553 

### (per curiam). 

### No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. art. 931. Therefore, the court reviews the petition and accepts well pleaded allegations of fact as true, and the issue at the trial ofthe exception is whether, on the face ofthe petition, the plaintiff is legally entitled to the relief sought. Dodson 

### & Hooks, APLC, 

### 310 So.3d at 553. Furthermore, the facts shown in any documents annexed to the petition must also be accepted as true. Expert Riser Solutions, LLC v. Techcrane International, LLC, 

### 2018-0612 (La.App. 1 Cir. 12/28/18), 270 So.3d 655, 663. Applying these principles to the petition and attached exhibits, I agree with the majority that the Patin plaintiffs have stated a cause of action. Therefore, I concur with the result reached. However, I find that the majority errs in addressing the validity of the 2006 Act of Correction. Assessing the validity of the 2006 Act of Correction, which

### for purposes ofthe exception of no cause of action must be accepted as true, was an improper and unnecessary step. By taking this additional step, the majority, on an exception of no cause of action, decided an issue essential to whether the Patin plaintiffs sustained damages. 1 

### Accordingly, I dissent with the portion of the opinion addressing the validity ofthe 2006 Act ofCorrection.

1 We note that in Dodson & Hooks, APLC, the Louisiana Supreme Court stated: In reaching this conclusion, we emphasize we are not expressing any opinion on the merits. Rather, our holding simply stands for the proposition that based on the liberal standard for deciding an exception of no cause of action, we find plaintiff has alleged sufficient facts to state a cause of action. If Dodson & Hooks believes plaintiff is unable to establish these facts, it has other procedural remedies available, such as filing a properly-supported motion for summary judgment. (Emphasis added); Dodson & Hooks, APLC, 310 So.3d at 553-54.