Rip Tide Investors Inc v. W & T Offshore Inc et al
MEMORANDUM RULING re 14 MOTION for Summary Judgment filed by W & T Offshore Inc, 16 MOTION for Summary Judgment filed by Rip Tide Investors Inc. Signed by Chief Judge S Maurice Hicks on 11/13/2017. (crt,McDonnell, D)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
RIP TIDE INVESTORS, INC.
CIVIL ACTION NO. 15-1656
UNASSIGNED DISTRICT JUDGE
W & T OFFSHORE, INC., ET AL.
MAGISTRATE JUDGE WHITEHURST
Before the Court in this litigation involving a lease dispute are cross-motions for
summary judgment filed by Defendant W&T Offshore, Inc. (“W&T”) and Plaintiff Rip Tide
Investors, Inc. (“Rip Tide”). W&T seeks a judgment of dismissal with prejudice of all claims
asserted against it by Rip Tide (Record Document 14), on the basis that the lease was
not renewed and all obligations owed by W&T were extinguished by performance prior to
expiration of the initial lease period. Rip Tide seeks judgment in its favor, holding W&T
liable for payment of the balance of rentals due under the lease, which Rip Tide contends
was extended by virtue of W&T’s assignee, Black Elk Energy Offshore Operations, LLC’s
(“Black Elk”), exercise of an option to renew (Record Document 16). Because the Court
finds there is no genuine issue of material fact and W&T is entitled to judgment as a matter
of law, W&T’s Motion (Record Document 14) is hereby GRANTED, and Rip Tide’s Motion
(Record Document 16) is hereby DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are not in dispute. Rip Tide is the primary surface lessee of
approximately 350 acres of land in Vermilion Parish, Louisiana, leased to it by Vermilion
Corporation and Humble Oil & Refining Company (now ExxonMobil). Record Document
1-1 at ¶ 3; Record Document 16-2 at 6. Effective December 1, 2008, Rip Tide (as
Sublessor) entered into a surface sublease (“the Sublease”) with W&T (as Sublessee) of
two tracts of land situated within that 350 acres. Record Document 1-1 at ¶ 4; Record
Document 16-1 at ¶ 1. The primary term of the Sublease between Rip Tide and W&T was
from December 1, 2008 through November 30, 2013, at a monthly rental rate of
$7,500.00. Record Document 14-1 at ¶ 3; Record Document 16-2 at 6. The Sublease
contained an option to extend the primary term of the lease for an additional three and a
half years, which reads as follows:
SUBLESSEE is granted the option to renew this lease for one (1) additional
period ending May 31, 2017 under the same terms, conditions and rentals
due under the primary term of this lease, except as modified in paragraph
2. 1 In the event SUBLESSEE desires to exercise the option herein granted,
it shall do so by giving written notice to SUBLESSOR by Certified Mail or
Registered mail at least ninety (90) days before the expiration of the lease.
Record Document 14-5 at ¶ 3. Thus, in order to timely exercise the option to renew the
Sublease, Rip Tide had to receive written notice by certified or registered mail on or before
September 2, 2013. Record Document 14-1 at ¶ 5; Record Document 16-2 at 7.
On October 29, 2009, W&T assigned the Sublease to Black Elk by Conveyance
and Bill of Sale. Record Document 14-1 at ¶ 1; Record Document 16-3 at 19. All interested
parties consented to the assignment. Record Document 16-1 at ¶ 3; Record Document
19-1 at 1. On September 19, 2013, seventeen (17) days after the September 2 deadline
for renewal, Jeff Hemingway, a Senior Landman for Black Elk, mailed a letter to Rip Tide
2 of the Sublease provides that every five years the monthly rental cost would
be adjusted based on a formula utilizing the Consumer Price Index, but “in no event shall
the rental be less than the original base rental.” Record Document 14-5 at ¶2.
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via regular U.S. Mail, which stated in pertinent part, “By copy of this letter, Black Elk
Energy Offshore Operations, LLC (as successor in interest to W&T Offshore, Inc.) hereby
requests to renew that certain Surface Sublease dated effective December 1, 2008 for an
additional term until May 31, 2017, as provided in paragraph 3 of the agreement.” Record
Document 16-4 at 18; Record Document 14-1 at ¶ 6. On November 12, 2013, Dexter
Duhon, Secretary/Treasurer of Rip Tide, responded to Mr. Hemingway by e-mail as
follows: “With regard to the renewal of your lease with Riptide Investors Inc., the new
monthly lease payment, beginning on December 1, 2013, will be $7975.45. This renewal
period will end on May 31, 2017.” Record Document 16-4 at 19. Rip Tide had no further
communications with Black Elk about the option to renew. Record Document 16-4 at ¶¶
15, 17; Record Document 14-1 at ¶ 8. Neither Rip Tide nor Black Elk contacted W&T to
obtain its consent to Black Elk’s untimely attempt to exercise the option to renew the
Sublease. Record Document 14-1 at ¶ 9; Record Document 16-1 at ¶ 5.
All payments due under the Sublease were paid by Black Elk through November
30, 2013. Record Document 14-1 at ¶ 10; Record Document 16-1 at ¶ 12. Thus, all
amounts owed for rent under the original Sublease term were paid. After expiration of the
original Sublease term, Black Elk paid the increased monthly rental rate of $7,975.45 for
the months of December 2013 through November 2014. Record Document 14-1 at ¶ 11;
Record Document 16-1 at ¶ 13. No further rental payments were made by Black Elk after
the November 2014 payment. Record Document 14-1 at ¶ 13; Record Document 16-1 at
¶ 15. Although it continued to pay the rent, Black Elk did not occupy the leased premises
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at any time after the expiration of the primary term of the Sublease on November 30,
2013. Record Document 14-1 at ¶ 12; Record Document 16-1 at ¶ 14.
Rip Tide initiated this suit against W&T and Black Elk in state court on March 24,
2015, seeking “judgment in favor of Rip Tide and against W&T and Black Elk, jointly,
severally and in solido, for all rentals due under the terms of the lease, together with legal
interest thereon from the date of judicial demand, all costs associated with the prosecution
of this suit, and all just and equitable relief.” Record Document 1-1 at 5. On May 7, 2015,
Defendants removed this matter to this Court, based upon 28 U.S.C. § 1332, diversity of
citizenship. Record Document 1. On August 11, 2015, an Involuntary Petition for
Bankruptcy was filed against Black Elk in the United States Bankruptcy Court for the
Southern District of Texas. Record Document 10. Accordingly, Rip Tide’s claim against
Black Elk is stayed pursuant to 11 U.S.C. § 362(a), pending notice from the presiding
bankruptcy court that the stay has been lifted. Record Document 11. In accordance with
a previous Order of the Court, Rip Tide and W&T conferred and agreed there is no need
to stay the litigation of Rip Tide’s claim against W&T. Record Document 11; Record
W&T now seeks judgment in its favor, dismissing all claims asserted against W&T
by Rip Tide with prejudice. Record Document 14 at 1. W&T contends Black Elk’s
attempted exercise of the option to renew was untimely; therefore, the Sublease expired
at the end of the primary term on November 30, 2013. Record Document 14-2 at 15-16.
According to W&T, because all obligations under the primary Sublease were extinguished
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by performance, W&T owes no further contractual obligations to Rip Tide. Record
Document 14-2 at 11, 16.
Contrarily, Rip Tide seeks judgment in its favor “holding W&T liable for payment of
the balance of rentals due under the Surface Sublease.” Record Document 16 at 2. Rip
Tide acknowledges Black Elk’s purported exercise of the option to renew was untimely.
Record Document 16-1 at ¶¶ 6-8. Nevertheless, Rip Tide contends it waived Black Elk’s
untimely exercise of the option, and therefore W&T, as assignor, remains solidarily liable
with Black Elk for the unpaid rentals from December 2015 through May 2017. Record
Document 16-2 at 9.
LAW AND ANALYSIS
Summary Judgment Standard
“A party may move for summary judgment, identifying each claim or defense - or
the part of each claim or defense - on which summary judgment is sought.” Fed. R. Civ.
P. 56(a). “The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Id. A fact is material if proof of its existence or nonexistence might affect the
outcome of the lawsuit under the applicable governing law. Sossamon v. Lone Star State
of Texas, 560 F.3d 316, 326 (5th Cir. 2009). As summarized by the Fifth Circuit:
When seeking summary judgment, the movant bears the initial
responsibility of demonstrating the absence of an issue of material fact with
respect to those issues on which the movant bears the burden of proof at
trial. However, where the non-movant bears the burden of proof at trial, the
movant may merely point to an absence of evidence, thus shifting to the
non-movant the burden of demonstrating by competent summary judgment
proof that there is an issue of material fact warranting trial. Only when “there
is sufficient evidence favoring the nonmoving party for a jury to return a
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verdict for that party” is a full trial on the merits warranted. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510 (1986).
Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994) (internal citations
In evaluating evidence to determine whether a factual dispute exists, “credibility
determinations are not part of the summary judgment analysis.” Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir.1994). To the contrary, “[i]n reviewing all the evidence, the
court must disregard all evidence favorable to the moving party that the jury is not required
to believe, and should give credence to the evidence favoring the nonmoving party as
well as that evidence supporting the moving party that is uncontradicted and
unimpeached.” Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir. 2001).
“Lease is a synallagmatic contract by which one party, the lessor, binds himself to
give to the other party, the lessee, the use and enjoyment of a thing for a term in exchange
for a rent that the lessee binds himself to pay.” La. Civ. Code art. 2668. The term of a
lease may be agreed to by the parties or fixed by law. La. Civ. Code art. 2678. In
interpreting a lease made pursuant to Louisiana law, courts are to “begin from the wellsettled premise that ‘[c]ontracts have the effect of law for the parties’ and the
‘[i]nterpretation of a contract is the determination of the common intent of the parties.’”
Lobell v. Rosenberg, 2015-0247 (La. 10/14/15), 186 So.3d 83, 88 (alterations in original)
(quoting Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 2012-2055 (La. 3/19/13),
112 So.3d 187, 192); see also Tenet Health Sys. Surgical, L.L.C. v. Jefferson Parish
Hosp. Serv. Dist. No. 1, 426 F.3d 738, 741 (5th Cir. 2005).
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“When the words of a contract are clear and explicit and lead to no absurd
consequences, no further interpretation may be made in search of the parties intent.” La.
Civ. Code art. 2046. “Each provision in a contract must be interpreted in light of the other
provisions so that each is given the meaning suggested by the contract as a whole.” La.
Civ. Code art. 2050. “When a clause in a contract is clear and unambiguous, the letter of
that clause should not be disregarded under the pretext of pursuing its spirit, as it is not
the duty of the courts to bend the meaning of the words of a contract into harmony with a
supposed reasonable intention of the parties.” Lobell, 186 So.3d at 89.
“An option is a contract whereby the parties agree that the offeror is bound by his
offer for a specified period of time.” La. Civ. Code art. 1933; see also La. Civ. Code art.
2669. “If the lease contract contains an option to extend the term and the option is
exercised, the lease continues for the term and under the other provisions stipulated in
the option.” La. Civ. Code art. 2725. The foregoing codal article addresses what is
popularly known as the “option to renew.” Id. at comment (b). The option or right to renew
a lease is never presumed. Governor Claiborne Apartments, Inc. v. Attaldo, 50016 (La.
5/4/70), 235 So.2d 574, 576; Knatt v. Hosp. Serv. Dist. No. 1 of East Baton Rouge Parish,
289 F. App’x 22, 28 (5th Cir. 2008).
Where a lessee provides written notice of his intention to renew, but that notice is
untimely, renewal of the lease under an option to renew is not valid, and the lease
terminates at the expiration of the initial lease period. Southern Ventures Corp. v. Texaco,
Inc., 63945 (La. 6/25/79), 372 So.2d 1228, 1230; Sizeler Hammond Square Ltd. P’ship v.
Gulf States, 02-759 (La. App. 5 Cir. 12/11/02), 836 So.2d 256, 260-61; Knatt, 289 F. App’x
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at 28; La. Civ. Code art. 1773 (If the condition upon which an obligation depends is that
an event shall occur within a fixed time and that time elapses without the occurrence of
the event, the condition is considered to have failed). In such a circumstance, neither
continued possession by the lessee nor acceptance of rent by the lessor will be deemed
tacit acknowledgment of the right to renew, nor will it be deemed as a waiver of any of the
terms set forth in the option. Southern Ventures, 372 So.2d at 1230; Sizeler, 836 So.2d
at 261-62; Knatt, 289 F. App’x at 28-30.
As previously set forth, W&T contends summary judgment in its favor is warranted
because Black Elk’s attempted exercise of the option to renew was not timely, and
therefore the Sublease expired on November 20, 2013, i.e., the end of the primary term
of the Sublease. According to W&T, because all obligations under the original Sublease
were extinguished by performance, W&T owed no further contractual obligations to Rip
Tide. Record Document 14-2 at 11. Rip Tide contends summary judgment in its favor is
warranted because Black Elk’s untimely exercise of the option was waived by Rip Tide,
and therefore W&T, as assignor, remains solidarily liable with Black Elk for the unpaid
rentals from December 2015 through May 2017. Record Document 16 at 1-2.
Before examining the issue before the Court, i.e., whether Black Elk’s untimely
exercise of the option to renew is binding upon W&T, the Court briefly notes what is not
at issue between the parties. First, the parties (and the Court) agree the Sublease was
not reconducted, because the undisputed evidence is that Black Elk did not occupy the
premises at any time after the primary term of the Sublease expired. Record Document
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14-2 at 18-19; Record Document 18-1 at 5. See La. Civ. Code art. 2721 (“A lease with a
fixed term is reconducted if, after the expiration of the term, and without notice to vacate
or terminate or other opposition by the lessor or the lessee, the lessee remains in
possession . . . [f]or one week . . . .”). Second, the parties (and the Court) agree no
novation took place. “Novation is the extinguishment of an existing obligation by the
substitution of a new one.” La. Civ. Code art. 1879. According to W&T, “all obligations of
the parties under the original Surface Sublease were performed, and thus there was no
obligation to be extinguished.” Record Document 19 at 11. According to Rip Tide,
because there was no extinction of the original obligation nor substitution of a new
obligation, no novation occurred. Record Document 16-2 at 15. The Court additionally
notes a delegation of performance by an obligor to a third person “effects a novation only
when the obligee expressly discharges the original obligor.” La. Civ. Code art. 1886; see
also Cane River Shopping Center v. Monsour, 83-23 (La. App. 3 Cir. 5/25/83), 443 So.2d
602, 604 (Lessor’s consent to assignment of lessee’s lease and new lessee’s assumption
of payments under lease was merely acceptance of new debtor and not an express
declaration to discharge old debtor, and therefore the assignment was not a novation). In
this matter, the obligee, Rip Tide, did not expressly discharge the original obligor, W&T.
Therefore, there was no novation.
The Court now turns to the issue at hand, namely, whether Black Elk’s untimely
exercise of the option to renew is binding upon W&T. To properly exercise the option to
renew the Sublease, Black Elk was required to give written notice to Rip Tide by certified
or registered mail on or before September 2, 2013. Black Elk did not provide such notice
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until September 19, 2013, more than two weeks after the option expired. Where a lessee
provides untimely notice of his intention to renew, there is no valid renewal and the lease
agreement comes to an end. Southern Ventures Corp. v. Texaco, Inc., 63945 (La.
6/25/79), 372 So.2d 1228, 1230; Hidalgo Motors, Inc. v. Opelousas Courtesy Motors, Inc.,
89-903 (La. App. 3 Cir. 3/13/91), 576 So.2d 1086, 1087-88; Knatt v. Hosp. Serv. Dist. No.
1 of East Baton Rouge Parish, 289 F. App’x 22, 29 (5th Cir. 2008). Because Black Elk’s
attempt to exercise the option was untimely, there was no valid renewal of the Sublease.
Therefore, the Sublease expired at the end of its primary term on November 30, 2013.
Metairie PJ’s, Inc. v. Richards Clearview, L.L.C., 07-188 (La. App. 5 Cir. 8/28/07), 963
So.2d 548, 549; Knatt, 289 F. App’x at 29.
Rip Tide admits Black Elk’s exercise of the option to renew was untimely but
maintains the Court should find Rip Tide waived Black Elk’s untimeliness, thereby
resulting in a valid renewal of the Sublease. In support of this contention, Rip Tide argues
“Black Elk’s letter stating its intention to exercise the option was unequivocal in that it
intended to bind itself to the option terms contained in the Surface Sublease.” Record
Document 18-1 at 4. Rip Tide notes, “Prior to the lapse of the primary term, Dexter Duhon,
Secretary/Treasurer of Rip Tide, sent an email to the duly authorized representative of
Black Elk recognizing that, by virtue of its letter, Black Elk would be bound to the lease
through May 31, 2017.” Id. Rip Tide points out that Black Elk began paying the increased
rental rate as required by the option agreement. Id. Rip Tide further notes that W&T was
aware at the time it assigned the Sublease to Black Elk that Black Elk might exercise the
option to renew. Id. at 5. Thus, Rip Tide concludes, “Black Elk’s untimely exercise of the
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option, and the waiver by both Black Elk and Rip Tide of that untimely exercise, did not
prejudice W&T by imposing on it, as solidary obligor of Black Elk, an obligation of which
it was unaware.” Id. 2
cases cited by Rip Tide in support of its argument are of little assistance in deciding
the issue before this Court. Rip Tide cites Meaghan Frances Hardcastle Trust v. Fleur De
Paris, Ltd., 2004-1371 (La. App. 4 Cir. 6/29/05), 917 So.2d 448, contending that case
recognizes “[t]he parties’ ability to waive the untimely exercise of a lease extension. . . .”
Record Document 18-1 at 6. However, Meaghan Frances had nothing to do with the
waiver of an untimely lease extension. Rather, Meaghan Frances dealt with ratification of
a lease renewal clause that was relatively null, because it was not signed by all parties to
the original lease. Both the original lease and renewal lease were filed in the conveyance
records. Thereafter, the property was sold to the Meaghan Frances Hardcastle Trust (“the
Trust”). After accepting rent payments for approximately one year, the Trust brought a
Rule for Eviction against the tenants, arguing in part that the renewal lease was invalid
as it was not signed by all parties to the original lease. Id. at 450. Affirming the trial court,
the appellate court found the renewal lease was relatively null, but was confirmed by the
acceptance of the rental payments. The appellate court additionally found the Trust was
aware the lease had been renewed at the time it purchased the lease, because the
renewal was filed in the conveyance records. To the extent Rip Tide is arguing its
acceptance of increased rental payments after expiration of the primary Sublease
constituted ratification, Rip Tide’s “reliance on the doctrine of ratification is misplaced.”
Knatt, 289 F. App’x at 30. In this matter, as in Knatt, neither the primary lease nor the
purported renewal were relatively null. Rather, the lease and the option to renew expired
on their own terms because the option was not timely exercised. Id. Rip Tide additionally
cites Gennaro v. Royal Oldsmobile Co., Inc., 09-1062 (La. App. 5 Cir. 5/25/10), 37 So.3d
1109 (addressing whether an automatic renewal clause of a lease was activated by the
conduct of a sublessee) in support of its position that “[b]y couching its transfer of the
lease to Black Elk as an assignment and not a sublease, W&T had notice that it was
delegating to Black Elk the power to exercise the option to renew the Surface Sublease.”
Record Document 18-1 at 9. The Court agrees with the foregoing statement of Rip Tide;
while W&T did indeed have notice “it was delegating to Black Elk the power to exercise
the option to renew,” W&T did not have notice that Black Elk could exercise the option to
renew on terms different than those set forth in the primary lease. The Court additionally
notes Gennaro dealt with a sublease, which has different legal ramifications than an
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The deficiency in Rip Tide’s argument is that it neglects the fact that there are two
obligors under the Sublease - Black Elk and W&T. See La. Civ. Code art. 1789; La. Civ.
Code art. 1794; La. Civ. Code art. 1815. W&T did not consent to any modification or
waiver of the terms set forth in the option to renew, and therefore W&T cannot be bound
to any purported waivers or modifications in which it did not participate. It is manifest that
“no action for breach of contract may lie in the absence of privity of contract between the
parties.” Pearl River Basin Land & Dev. Co., L.L.C. v. State ex rel. Governor's Office of
Homeland Sec. & Emergency Preparedness, 2009-0084 (La. App. 1 Cir. 10/27/09), 29
So.3d 589, 592. As held by the Louisiana Supreme Court, “The subsequent acceptance
of the rental payments should not be construed as implying an agreement to extend the
time for the exercise of the option in some other way which would be at variance with [the
parties’] agreement.” Southern Ventures, 372 So.2d at 1230. Because Black Elk’s notice
of its intention to exercise the option was untimely, and because W&T did not agree to
waive Black Elk’s untimely exercise of the option, the Court finds the option expired on
September 2, 2013 as set forth in the Sublease. Black Elk’s September 19, 2013 letter
constituted an offer to enter into a new sublease on the same terms set forth in the original
Sublease between Rip Tide and W&T. Sizeler Hammond Square Ltd. Partnership v. Gulf
States, 02-759 (La. App. 5 Cir. 12/11/02), 836 So.2d 256, 261; Constantin Land Trust v.
Pitre Industries, L.L.C.,2016-0993 (La. App. 1 Cir. 10/10/17), 225 So.3d 1089, 1097;
Governor Claiborne Apartments, Inc. v. Attaldo, 50016 (La. 5/4/70), 235 So.2d 574, 576,
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n.2. As W&T was not a party to Black Elk’s offer to enter into a new contract of lease, it
cannot be bound by any subsequent agreement between Rip Tide and Black Elk.
The Court finds the case cited by W&T, Davis v. Avenue Plaza, LLC, 2000-0226
(La. App. 4 Cir. 12/27/00), 778 So.2d 613, to be instructive. In Davis, a lessee of a timeshare unit alleged he and the original lessor had orally modified the terms of the written
contract of lease, and for a period of ten years thereafter, the original lessor honored the
oral modification. The property was later sold, and the new owner was assigned the timeshare lease. When the assignee/lessor advised the lessee it would enforce the contract
of lease pursuant to its written terms only, the lessee brought suit for breach of lease. The
lessee relied upon Pelican Electrical Contractors v. Neumeyer, 12783 (La. App. 4 Cir.
6/8/82), 419 So.2d 1, for the proposition that a written contract could be modified orally,
even if the contract requires that modifications be in writing. However, the appellate court
found Pelican Electrical was distinguishable, because in that case “the subsequent oral
modification was enforced against the original party to the contract.” Davis, 778 So.2d at
614-15 (“That is, the same party who entered into the oral modification was bound by it”).
Unlike Pelican Electrical, in the Davis case, “the claimed oral modification was entered
into between Mr. Davis [the lessee] and APAC [the original lessor] but Mr. Davis seeks to
enforce it against Avenue Plaza [the assignee/lessor].” Id. at 615. The appellate court
“decline[d] to extend Pelican Electrical to allow enforcement of a subsequent oral
modification, despite the presence of a no oral modification clause, against an assignee
who did not participate in the oral modification,” reasoning in part as follows:
Assignments of leases and other contracts, done either individually or, as
in the present case, as part of a larger transaction, are common and
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commercially important. Were we to hold that an assignee of a written lease
or other written contract, which lease or other contract contains a no oral
modification clause, could be bound by an oral modification in which it did
not participate, then we would make the taking of assignments of leases
and contracts (which might be dearly paid for) a hazardous practice and one
subject to frequent injustice. An assignee of a written lease or other written
contract which contains a no oral modification clause ought to be able to
rely upon that clause.
While not completely on point factually, the reasoning of the Davis court is
persuasive: W&T, the assignor, should not be bound by a modification to the Sublease in
which it neither participated nor consented. W&T was entitled to rely upon the renewal
clause of the Sublease and to insist upon strict compliance with its terms. When the
Sublease was not timely renewed in accordance with its express provisions, the Sublease
expired at the end of its primary term in accordance with Louisiana law. Black Elk paid
rent through the expiration of the primary term, and therefore W&T’s obligations under
the Sublease were discharged at that time. Whatever agreement may have arisen
between Black Elk and Rip Tide subsequent to the expiration of the option to renew is not
binding upon W&T, as W&T was not a party to that agreement. 3 Rip Tide’s remedy in this
matter, if any, lies solely against Black Elk.
additionally contends because Black Elk’s attempt to exercise the option to renew
was tendered to Rip Tide via regular U.S. mail (rather than by certified or registered mail
as required by the Sublease), Black Elk failed to comply with one of the conditions
required for a valid exercise of the option. Record Document 14-2 at 16. As this argument
was inadequately briefed, and because the Court finds Black Elk’s attempt to exercise
the option was untimely, it will not address this argument except to note, “When, in the
absence of a legal requirement, the parties have contemplated a certain form, it is
presumed that they do not intend to be bound until the contract is executed in that form.”
La. Civ. Code art. 1947; see also Casey v. National Information Services, Inc., 2004-0207
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From the summary judgment evidence, it is clear that there is no genuine dispute
as to any material fact and W&T is entitled to summary judgment as a matter of law. W&T
has shown it did not breach the Sublease at issue, it has shown any obligations it owed
under the Sublease were extinguished by performance, and it has shown it was not privy
to any subsequent agreement entered into by Rip Tide and Black Elk following expiration
of the option to renew the Sublease. Accordingly, the Court finds all claims asserted by
Rip Tide against W&T in this matter must be dismissed.
In light of the findings of the Court, W&T Offshore, Inc.’s Motion for Summary
Judgment (Record Document 14) is GRANTED, and Rip Tide Investors, Inc.’s Motion for
Summary Judgment (Record Document 16) is DENIED.
An order consistent with the findings of this Memorandum Ruling shall issue
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 13th day of November,
(La. App. 1 Cir. 6/10/05), 906 So.2d 710 (landowner’s option to purchase property from
mortgagee’s assignee was not exercised where landowner’s attempt to exercise the
option was untimely and was not tendered via registered mail as required by the terms of
the option); Salmen Co., L.L.C. v. Weyerhaeuser Co., 2007-0556 (La. App. 1 Cir.
12/21/07), 2007 WL 4465609, *4.
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