Delay in filing suit too often spells doom for the plaintiff, as we learn in Zadeck Succession et al v. Treme et al.

Treme (as in the family collectively) claimed their father, Vandiver, was conveyed a 5% working interest in mineral leases in DeSoto Parish, Louisiana, as compensation for his work in re-completing the Harrison Brown #1 well in 1993. There was no written document, but accounting records of the various operators credited him with a working interest in the well and he received payments associated with that working interest and paid for his share of costs. The lease was transferred several times and Vandiver and his heirs continued to pay their share of costs and receive their share of revenues.

Comstock (not a party) now owns the leases. Treme claimed Zadeck included Vandiver’s 5% in his conveyance to Comstock. Comstock drilled several wells and did not pay Vandiver and his heirs the revenue attributable to an override reserved to Zadeck, and Vandiver received no compensation in the conveyance to Comstock.

In 2009 Vandiver asked his lawyer about a potential claim against Zadeck for the 5%. Treme learned of the exchange in 2009. In 2020 Treme sent a letter to Zadeck Energy claiming that Zadeck conveyed the 5% working interest. In January 2021 Treme filed a proof of claim in Zadeck’s succession claiming a portion of the consideration Zadeck received from the Comstock conveyance, a portion of the override, and a formal assignment.

Taking the offensive, Zadeck sued in February 2021, alleging that any claim Treme may have had to the leases or profits was a time-barred personal action. Treme contended that the claims were real actions that are imprescribable because their action was to determine the rights of the parties in the leases. The transfer to Comstock was merely a sublease, they said.

Real right or personal action?

A real right under the civil law is synonymous with a proprietary interest, both of which refer to a species of ownership. Ownership of a real right defines the relationship of a person to things, and may therefore be declared against the world. (Quoting A. N. Yiannopolous, “Yippie” to his LSU law students back in the day).

On the other hand, a personal right is a legal power that a person has to demand performance from another person. Actions seeking recognition of ownership or enforcement of the rights in property are real actions, not personal actions.

A request for judgment for a 5% working interest in the leases appears to be a real action, except that Zadeck no longer owned the property even if Treme had owned the 5% interest that was conveyed to Comstock. Because Treme could not recover a property interest in the leases, they did not have a real action.

Treme had a personal action against Zadeck for conduct that may have deprived them of the property before the conveyance to Comstock. Because they knew of this action in 2009 the personal action they may have had was extinguished by the ten-year prescriptive period.

Treme claimed that if Comstock determined it no longer wished to drill on the leases it could release them and the working interest would revert to defendants. But there was no language in the Comstock conveyance suggesting such a right.

The court declined to rule on the substantive claims because Treme’s counterclaims had prescribed. Judgment rendered for Zadeck.

Willie laments the passage of time along with the Treme’s?

Burt Bacharach RIP