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Judgment rendered May 16, 2012. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 47,085-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

***** GEORGE DWAIN SPILLMAN, SR. AND NANCY CALHOUN SPILLMAN Plaintiff-Appellants

Versus

GASCO, INC., F.S.M., INC. AND FRANK SCOTT MORAN *****

Defendant-Appellees

Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 71,728 Honorable Robert E. Burgess, Judge *****

AYRES, WARREN, SHELTON & WILLIAMS, L.L.C. By: Curtis R. Shelton Justin M. Myers ROBERT A. JAHNKE

Counsel for Appellants

Counsel for Appellees

*****

Before STEWART, DREW and MOORE, JJ.

MOORE, J. George and Nancy Spillman appeal a summary judgment that rejected their claim to enforce a warranty deed. We affirm. FACTS In April 2001, the Spillmans bought Lot 19, Deer Park Estates, a subdivision of DeSoto Parish, from Gasco Inc. They signed a credit sale deed reciting that the sale was with "full guarantee of title." The credit sale deed also stated, "Subject to any restrictions, easements and servitudes of record." The credit sale deed made no reference to oil, gas and minerals; the Spillmans later averred via affidavit that nobody told them at the time that their purchase excluded the minerals. Sometime in 2010 (presumably after trying to grant a mineral lease in the Haynesville Shale zone), they learned that in July 1999, Frank Scott Moran, a prior owner of the subdivision, had sold the entire tract to Gasco Inc. by credit sale deed that expressly excluded the minerals from the sale; in November 1999, Moran had executed a sale and assignment of all oil, gas and other minerals under the tract to FSM, Inc. (FSM); and in February 2001, FSM had executed a sale and assignments of the minerals back to Moran. All these documents were filed in the conveyance records of DeSoto Parish before the Spillmans bought Lot 19. The Spillmans filed this suit in June 2010 against Gasco, FSM and Moran. They conceded that when they bought Lot 19 in April 2001, they were unaware that Gasco did not own the minerals. However, they alleged that Moran was the sole or majority stockholder in both Gasco and FSM, and controlled both corporations; all three defendants knew or should have

known that Gasco was giving them a warranty deed, but failed to disclose that, contrary to the recitals of the credit sale deed, Gasco could not convey minerals it did not own. The Spillmans sought judgment enforcing the warranty deed by ordering the defendants to convey the minerals to them. In the alternative, they demanded monetary damages equal to the value of the minerals under Lot 19. The defendants conceded that Moran was a stockholder in Gasco and FSM. They asserted, however, that the credit sale deed was subject to "any restrictions, easements and servitudes of record," and that the documents reserving the minerals to Moran were of record.1 They also urged the affirmative defenses of assumption of risk and estoppel. The defendants then filed this motion for summary judgment. They asserted the same facts alleged in their answer, together with certified copies of all the 1999 and 2001 transactions, showing that all were filed in the conveyance records before the Spillmans bought Lot 19. They attached Moran's affidavit, stating that as a result of these transactions, Gasco never owned the minerals, and that wells were drilled in the area within 10 years of the creation of the mineral servitude. They also attached a portion of Mr. Spillman's deposition, in which he stated that he did not examine the public records because he felt Gasco's agent, Mr. Vennum, was a "very trustworthy type." They argued that under the public records doctrine, the Spillmans had no claim.

The defendants also filed a third party demand against United Title, which performed the title exam for the credit sale deed to the Spillmans. United Title asserted the three-year peremptive period of La. R.S. 35:200, which the trial court sustained. No one has appealed the judgment sustaining this exception.

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The Spillmans opposed the motion, reiterating the facts of their petition. They also alleged that two or three months after they bought Lot 19, they received a "proposed act of correction" stating that through error and inadvertence the language reserving the mineral rights had been omitted from the credit sale deed. They also filed affidavits stating that nobody ever told them about a mineral servitude or reservation of mineral rights, and that they did not really understand what the clause "subject to any restrictions, easements and servitudes of record" meant. They argued that because the seller did not "clearly express the extent of his obligations arising from the contract," any ambiguity or obscurity must be resolved against the seller. La. C.C. art. 2474. At a hearing in May 2011, the Spillmans argued that the credit sale deed did not "call out specifically" or "declare the existence of this nonapparent servitude," but referred only to "restrictions, easements and servitudes." They also argued that Gasco and FSM were controlled by Moran, and their collective conduct proved that they knew the reservation in the credit sale deed would not be sufficient to disclose the existence of the servitude. The defendants objected to the introduction of the proposed act of correction, but the record shows no ruling on the objection. They argued that the case was a simple application of the public records doctrine. Apparently, the court agreed and rendered summary judgment in favor of the defendants without written or oral reasons. The Spillmans have filed this appeal alleging two assignments of error.

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DISCUSSION On appeal, summary judgments are reviewed de novo. Sparks v. United Title & Abstract, LLC, 45,766 (La. App. 2 Cir. 12/15/10), 56 So. 3d 302. "Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law." Cutsinger v. Redfern, 08

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