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McCray v. Southern Aggregates, LLC

Court of Appeals of Louisiana, First Circuit

August 29, 2019

THERESA MCCRAY AND DENISE M. WILLIAMS, INDIVIDUALLY AND AS THE CO-ADMINISTRATRIXES OF THE SUCCESSION OF JOHNNY MCCRAY, SR., CARLENE JOYCE MCCRAY WOODEN, SOPHIA MCCRAY, OENA MCCRAY, MARVA MCCRAY GORDON, MEATHA MCCRAY WINBUSH, MARLIES MCCRAY MITCHELL, MARVIN MCCRAY, JR., GLORIA MCCRAY, DR. JAMES MCCRAY, JR., AND RUBY MCCRAY
v.
SOUTHERN AGGREGATES, LLC, DELAWARE, WARREN MCCRAY, JOHNNY MCCRAY, JR. AND KEVIN P. BLACK

          Appealed from the 21st Judicial District Court In and for the Parish of St. Helena State of Louisiana Case No. 22654 The Honorable Jeffrey S. Johnson, Judge Presiding

          Kenneth L. Blanchard, Jr. Plaquemine, Louisiana Counsel for Plaintiffs/Appellants Theresa McCray, et al.

          W. Brett Mason Baton Rouge, Louisiana Counsel for Defendants/ Appellees Southern Aggregates, LLC and Kevin P. Black

          Robert J. Carter Greensburg, Louisiana Counsel for Defendant/Appellee Warren McCray

          BEFORE: GUIDRY, CRAIN, THERIOT, PENZATO, AND LANIER, JJ.

          THERIOT, J.

         This appeal arises from a partial summary judgment that dismissed the plaintiffs' claims against two defendants with prejudice. For the reasons set forth herein, we reverse the partial summary judgment.

         FACTS AND PROCEDURAL HISTORY

         Theresa McCray, individually and as a co-administratrix of the Estate of Johnny McCray, Sr.; Denise McCray Williams, individually and as a co-administratrix of the Estate of Johnny McCray, Sr.; Carlene Joyce McCray Wooden; Sophia McCray; Oena McCray; Marva McCray Gordon; Meatha McCray Winbush; Marlies McCray Mitchell; Marvin McCray, Jr.; Gloria McCray; Dr. James McCray, Jr.; and Ruby McCray (collectively referred to herein as "Plaintiffs"), are among the co-owners of property located in St. Helena Parish. Plaintiffs filed suit against Southern Aggregates, LLC; Kevin P. Black, Southern Aggregates' vice president and general manager; and Warren McCray and Johnny McCray, Jr., fellow co-owners of the property, seeking damages arising from Warren and Johnny's execution of a Lease and Minerals Option Agreement ("Agreement") with Southern Aggregates and from the subsequent exercise by Southern Aggregates of the rights purportedly granted in the Agreement on the co-owned property. Warren and Johnny executed the Agreement in the capacity of authorized representatives of the rightful owners of the co-owned property, identified in the Agreement simply as "the heirs of Wm. Johnson, deceased." Plaintiffs alleged that Warren and Johnny fraudulently represented to Southern Aggregates and Black that they were authorized to act on behalf of all co-owners of the land and that Southern Aggregates and Black either knew or should have known that the representations were fraudulent and that they did not have a valid lease.[1] Plaintiffs alleged that Southern Aggregates and Black could not have reasonably believed that the lease was valid because they were informed by Warren and Johnny's attorney prior to execution of the Agreement that Warren and Johnny did not have a written mandate to act for the other co-owners and were unsure how many co-owners of the property currently existed.

         Southern Aggregates filed a concursus proceeding under La. C.C.P. art. 4651, impleading all co-owners of the property and depositing the total royalties to be paid under the Agreement, in the amount of $19, 093.59, into the registry of the court so that the co-owners could assert their respective claims contradictorily against each other. Southern Aggregates also filed a cross claim against Warren and Johnny, seeking defense and indemnification under the Agreement for Plaintiffs' claims.

         Southern Aggregates and Black filed a motion for summary judgment on Plaintiffs' claims and on their cross claim against Warren and Johnny. In support of their motion, they filed Black's affidavit; a copy of the Agreement; copies of monthly royalty statements for the co-owned property for June, July, and August 2014; and the trial court's August 28, 2017 concursus order.[2] Black's affidavit set forth the following facts: Black negotiated, as an agent for Southern Aggregates, with Warren and Johnny to obtain exploration and mining rights on property owned by "the William Johnson Estate and/or the Heirs of Wm. Johnson, Deceased;" Warren and Johnny held themselves out as authorized representatives of "the William Johnson Estate and/or the Heirs of Wm. Johnson, Deceased," and expressly warranted that they could act for and on behalf of all landowners; Warren and Johnny represented that they spoke for and had the consent of all of their relatives, and they knew of no other person claiming interest in the property other than the individuals they represented; Southern Aggregates relied on these representations when it entered into the Agreement; and neither Black nor Southern Aggregates knew that Warren and Johnny's representations were untrue, false, or fraudulent, or that they lacked authority to legally bind the landowners.

         In opposition to the motion for summary judgment, Plaintiffs filed an in globo exhibit, which consisted of unauthenticated copies of Southern Aggregates' unsworn responses to interrogatories, responses to requests for production of documents, and certain documents referenced therein.[3] Included in this in globo exhibit were emails exchanged during the drafting and negotiation of the Agreement between A. Shelby Easterly, III, counsel for Warren and Johnny; David Rieveschl, presumably counsel for Southern Aggregates; and Black. Plaintiffs urged that these emails created an issue of material fact as to whether Southern Aggregates and Black knew or should have known that Warren and Johnny did not have authority to act on behalf of all co-owners of the property.

         In an April 15, 2014 email to Black, Easterly stated:

The attached excerpt from the 1983 partition among the heirs, left 19 remaining as co-owners (though I am sure some of these have passed away leaving more owners). [Warren and Johnny] have acted in the past for all, though they do not have a power of attorney, and divided the moneys among the owners. ...

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