Judgment rendered August 26, 2026.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.
No. 56,802-CW
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
MARK A. FURLOW, CANDEE C. Respondents
FURLOW, MCELWEE FAMILY
PARTNERSHIP, L.P., MARY
LANGFORD FRANKLIN, BRIC L.
LANGFORD, BARBARA E.
LANGFORD, INDIVIDUALLY AND
AS CLASS REPRESENTATIVES
versus
PETRO-CHEM OPERATING Applicant
COMPANY, INC.
*****
On Application for Writs from the
Second Judicial District Court for the
Parish of Claiborne, Louisiana
Trial Court No. 42,589
Honorable Charles Glenn Fallin, Judge
*****
COOK, YANCEY, KING & GALLOWAY Counsel for Applicant By: John Tucker Kalmbach
James Bert Babington
William Drew Burnham
COLVIN, SMITH, MCKAY & BAYS Counsel for Respondents By: James Henry Colvin, Jr.
Daniel N. Bays, Jr.
*****
Before PITMAN, THOMPSON, and ELLENDER, JJ.
PITMAN, C. J.
Defendant-Applicant Petro-Chem Operating Company, Inc. (“PC”),
seeks a writ from the denial of summary judgment in this suit brought
against it for conversion of gas condensate, which was filed by PlaintiffsRespondents Mark A. Furlow, Candee C. Furlow, McElwee Family
Partnership, L.P., Mary Langford Franklin, Bric L. Langford and Barbara E.
Langford, individually and as class representatives. The writ was granted to
docket. For the following reasons, we reverse the judgment of the trial
court, render judgment in favor of PC and dismiss the suit against it.
FACTS
The following facts are undisputed by the parties. Plaintiffs own
royalties to oil, natural gas and minerals in contiguous tracts of land in
Claiborne Parish that are subject to oil, gas, and mineral leases executed in
2012 (“the 2012 Leases”) in favor of AIX Energy, Inc. (“AIX”). Plaintiffs,
as lessors, granted the following rights to AIX:
Lessor hereby grants, leases, and lets unto Lessee the exclusive
right to enter upon and use the land hereinafter described for
the exploration for and production of oil, gas, sulfur, and all
other minerals, together with the use of the surface of the land
for all purposes incident to the exploration for and production,
ownership, possession and transportation of said minerals.
(Emphasis added.)
AIX spudded 11 wells, 8 on Plaintiffs’ tracts and 3 on tracts in the
surrounding area. One of the 3 nearby wells was named the “Garrett Well.”
AIX gathered natural gas from all 11 wells into its pipeline for transport,
sale and delivery to a third party. It extracted and transferred suspended
liquids (condensate, oil and water a/k/a “wet” gas and “drip”) from the gas
stream through a separate line into a tank (a/k/a the “drip tank”) attached to
the Garrett Well. When a sufficient amount of condensate accumulated in the tank, AIX sold it and allocated the sale proceeds to the owners of the
contributing wells based on the amount of gas contributed by each well.
Following a 2015 bankruptcy filing, AIX sold its leases, the 11 wells
and gathering pipeline. The 8 wells on Plaintiffs’ tracts, the gathering
pipeline and the interest in the 2012 Leases were sold to Contango
Resources, Inc. (“Contango” or “Lessee”). The remaining 3 wells, including
the Garrett Well with the attached condensate tank, were sold to a different
owner, who hired PC to operate its wells.
In July 2016, with Contango’s consent, PC began selling the
accumulated condensate in the same manner. It held the sales proceeds until
December 2021 when Contango provided, and PC received, the monthly
production volume and ownership information for the eight contributing
wells. PC paid $56,298.93 to Contango. The condensate sales and the
distribution of the sales proceeds continued on a regular basis. In May 2022,
the eight wells and pipeline were sold to another company, and the new well
owner chose to collect the condensate in a collecting tank attached to its own
wells instead of those operated by PC.
In February 2022, prior to the sale, Plaintiffs filed a class action suit in
the Second Judicial District Court, Claiborne Parish, against PC alleging that
despite having no mineral leases from Plaintiffs, PC collected the condensate
from their tracts. Plaintiffs also alleged PC unlawfully diverted and gathered
the condensate without their knowledge or consent and sold it for PC’s
exclusive benefit and financial gain to Plaintiffs’ detriment and loss.
Although Contango claimed it distributed the amount of the sales proceeds
owed to Plaintiffs as royalties under the 2012 Leases, Plaintiffs alleged that
they were not compensated in any amount for their portion of the proceeds
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from the sale of the condensate. Plaintiffs sought judgment for damages
sustained as a result of PC’s “conversion of their minerals.”
PC filed a peremptory exception of no right of action, which the trial
court overruled after finding that PC’s arguments addressed an exception of
no cause of action instead of a no right of action. On the showing made, on
November 1, 2022, this court denied PC’s writ seeking supervisory review,
and the supreme court denied PC’s writ on February 7, 2023.
PC’s answer to the petition asserted that Plaintiffs did not have a right
of action to claim conversion because according to the terms of the 2012
Leases, Plaintiffs did not own the mineral condensate at the time it was
gathered and sold. PC referenced the language in the 2012 Leases wherein
Plaintiffs granted the Lessee the right of possession and ownership of the
minerals produced. PC further argued it had no obligation, contractual or
otherwise, to pay Plaintiffs for the sale of the condensate; and PC was not
liable for any damages that Plaintiffs may have sustained. PC stated that
payments from the sale of the condensate were made to Plaintiffs’ Lessee,
Contango, which owned the minerals it produced under the 2012 Leases and
was responsible for making any payments owed to Plaintiffs as royalites.
PC contended that Contango, as Lessee, was the proper party to sue if
Plaintiffs believed that they were not properly compensated pursuant to the
contractual obligation to pay royalties.
PC filed a motion for summary judgment and asserted that it was
entitled to judgment as a matter of law because Plaintiffs could not meet
their burden of proof at trial establishing that PC’s actions in gathering and
selling the condensate were inconsistent with their right of possession and
ownership in the minerals and condensate, which was an essential element
3
of their conversion claim. Because of the 2012 Leases, Plaintiffs had no
right of possession or ownership of the minerals and condensate extracted by
Contango and the condensate later sold by PC.
In support of its motion, PC provided copies of the 2012 Leases;
Contango’s corporate deposition, through its corporate representative, Jason
Thomas; an affidavit by Bryon Trust, PC’s chief operating officer (“COO”);
an affidavit by John D. Collinsworth, who examined the ownership interests
of the mineral rights to the subject tracts and confirmed that Plaintiffs’
mineral rights regarding those tracts were subject to the recorded mineral
leases; and an affidavit by J. Bert Babinton, with documentation of the AIX
bankruptcy, the sale and conveyance of the wells and 2012 Lease interests to
Contango and a certificate of merger.
PC argued that Plaintiffs’ ownership rights did not include ownership
of the natural gas and condensate not yet produced. PC contended that
pursuant to the lease, the lessor gave the lessee the exclusive right to explore
and develop the property for the production of the natural gas and to reduce
it to possession and ownership. PC argued that in the 2012 Leases, Plaintiffs
leased these rights to AIX, and its successor, Contango. PC also argued that
because natural gas is reduced to possession when it is under physical
control that permits delivery to another, vesting of title to natural gas occurs
when it is reduced to possession at the wellhead. PC asserted that under the
terms of the 2012 Leases, AIX/Contango became owner of the natural gas
produced once AIX/Contango reduced it to possession at the wellhead.
Absent the right to possession and ownership of the extracted and severed
minerals at the time of the claimed conversion, Plaintiffs could not show that
4
it acted inconsistently with Plaintiffs’ rights and so could not prove the
conversion claim against it.
In opposition, Plaintiffs maintained that PC had no right to gather and
sell the condensate without their approval and without compensating them
and that execution of the mineral lease could not benefit PC, who was not
affiliated with Contango by law or contract. In support of their argument,
Plaintiffs provided excerpts from depositions by Larry Hock, owner of PC;
Bryon Trust, COO of PC; Jason Russell, manager of PC’s revenue
distribution; and Bric Langford, one of the Plaintiffs; and an expert witness
affidavit of Clay Kimbrell, an expert in petroleum engineering.
Kimbrell is a registered professional engineer in 15 states, a registered
professional geoscientist in Texas and a professional geologist certified by
the American Institute of Professional Geologists. He has Bachelor of
Science degrees in Petroleum Engineering and Geology, as well as a Master
of Science in Petroleum Engineering. He has testified as an expert in
petroleum engineering, remediation/restoration and oilfield operations in
state and federal courts. His affidavit states that the condensate taken by PC
was obtained from “the scrubbing of the ‘wet’ natural gas generated
downstream from the wellhead and as such had been captured and was
owned by the mineral owners of each well.” He did not offer any further
information or documentation in support of this declaration and did not offer
any identification as to the “mineral owners of each well.”
Plaintiffs further asserted that Contango lacked the authority to give
consent for PC to gather and sell the condensate, but they did not address the
terms of the 2012 Leases granting the Lessee the rights incident to
ownership of the minerals the Lessee produced. Instead, Plaintiffs
5
contended that the law did not allow for any lease to grant a real right such
as ownership of minerals to the Lessee.
On September 29, 2025, a hearing on the motion for summary
judgment was held, at which time PC argued that summary judgment was
appropriate in this case because Plaintiffs could not prove an essential
element of their conversion claim, which was that they possessed or owned
the drip or natural gas condensate when it was allegedly converted by PC.
PC objected to Kimbrell’s affidavit as noncompliant with La. C.C.P.
art. 966(D)(2) and argued that Kimbrell is a geologist, not an attorney, and is
unqualified to assert legal conclusions regarding ownership of minerals; but,
nonetheless, he stated in an unsupported and conclusory manner that
Plaintiffs owned the minerals. PC pointed out that it is the province of the
trial court to make legal conclusions; and, thus, it asserted that the entire
affidavit should be stricken or disregarded and could not be relied upon to
prove Plaintiffs owned the minerals at the time of the alleged conversion.
In opposition, Plaintiffs argued that the 2012 Leases did not convey
ownership of the minerals extracted from their tracts. They acknowledged
that Contango produced the minerals and that, once produced, they were
severed and became susceptible to ownership under the Louisiana Mineral
Code. However, Plaintiffs still insisted that they retained both the right of
ownership and control of the natural gas and condensate produced by
Contango, the lessee, as well as the right to grant or oppose the sale of the
natural gas condensate by PC. Plaintiffs contended that the nature and
extent of PC’s conversion was a genuine issue of material fact that precluded
summary judgment.
6
On October 8, 2025, the trial court signed a judgment stating that
genuine issues of material facts remained that should be determined by the
trier of fact after a full trial on the merits. PC sought supervisory review,
and this matter was granted to the appellate docket.
DISCUSSION
PC argues that the trial court erred in failing to rule on its objection to
the affidavit and legal opinion of Kimbrell, Plaintiffs’ geologist, because he
is not an attorney and is unqualified to render an opinion on who owned the
extracted minerals at the time of the alleged conversion. It contends that the
trial court erred in denying summary judgment where Plaintiffs presented no
evidence establishing that they could prove their possession and ownership
of the extracted minerals at the time of the alleged conversion and, for that
reason, were unable to establish that PC acted inconsistently with Plaintiffs’
rights. It further argues that Plaintiffs failed to produce factual support
sufficient to establish the existence of a genuine issue of material fact or that
the mover is not entitled to judgment as a matter of law.
Plaintiffs argue that PC had no right to gather and sell the condensate
without their approval and without compensating them and that execution of
the mineral lease could not benefit PC, who was not affiliated with Contango
by law or contract. They assert that they were the owners of the condensate
and supported this assertion with Kimbrell’s affidavit. They contend that
Contango lacked a right or the authority to give consent for PC to gather and
sell the condensate and that the Louisiana Mineral Code does not expressly
or impliedly provide affirmative guidance regarding whether a mineral lease
conveys ownership of the minerals leased. Therefore, they argue, the
general laws of leases applied; and under general lease laws, a lease does not
7
convey any real right such as ownership. Plaintiffs further contend the
mineral leases convey to the lessee only the right to explore for and produce
the minerals. They argue that the minerals were owned by them once
brought to the surface for gathering and subsequent sale.
Appellate courts review motions for summary judgment de novo,
using the same criteria that govern the district court’s consideration of
whether summary judgment is appropriate. Peironnet v. Matador Res. Co.,
12-2292 (La. 6/28/13), 144 So. 3d 791; Springbok Royalty Partners, LLC v.
Woolley, 55,953 (La. App. 2 Cir. 11/20/24), 401 So. 3d 952, writ denied, 24-01540 (La. 2/28/25), 402 So. 3d 487. A motion for summary judgment is a
procedural device used when there is no genuine issue of material fact for all
or part of the relief prayed for by a litigant. La. C.C.P. art. 966(A)(1);
Springbok Royalty Partners, LLC, supra. The procedure is favored and shall
be construed to secure the just, speedy and inexpensive determination of
actions. La. C.C.P. art. 966(A)(2).
A motion for summary judgment shall be granted if the motion,
memorandum and supporting documents show that there is no genuine issue
as to material fact and that the mover is entitled to judgment as a matter of
law. La. C.C.P. art. 966(A)(3). A fact is material if it potentially ensures or
precludes recovery, affects a litigant’s ultimate success or determines the
outcome of the legal dispute. Springbok Royalty Partners, LLC, supra. A
genuine issue of material fact is one as to which reasonable persons could
disagree; if reasonable persons could reach only one conclusion, there is no
need for trial on that issue and summary judgment is appropriate. Id. In
determining whether an issue is genuine, a court should not consider the
8
merits, make credibility determinations, evaluate testimony or weigh
evidence. Id.
The burden of proof rests with the mover. La. C.C.P. art. 966(D)(1).
Nevertheless, if the mover will not bear the burden of proof at trial on the
issue that is before the court on the motion for summary judgment, the
mover’s burden on the motion does not require him to negate all essential
elements of the adverse party’s claim, action or defense but rather to point
out to the court the absence of factual support for one or more elements
essential to the adverse party’s claim, action or defense. Id. The burden is
on the adverse party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the mover is not entitled
to judgment as a matter of law. Id.
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence and
shall show affirmatively that the affiant is competent to testify to the matters
stated therein. La. C.C.P. art. 967(A).
When a motion for summary judgment is made and supported as
provided above, an adverse party may not rest on the mere allegations or
denials of his pleading; but his response, by affidavits or as otherwise
provided above, must set forth specific facts showing that there is a genuine
issue for trial. La. C.C.P. art. 967(B). If he does not so respond, summary
judgment, if appropriate, shall be rendered against him. Id.
Any objection to a document attached to the summary judgment
motion or opposition shall be raised in a timely filed opposition or reply
memorandum. La. C.C.P. art. 966(D)(2). The court shall consider all
objections prior to rendering judgment. The court shall specifically state on
9
the record or in writing whether the court sustains or overrules the objections
raised. Id.
A party challenging an expert witness’s qualifications shall file a
motion for a pretrial hearing and the court shall hold a contradictory hearing.
La. C.C.P. art. 1425(F). If a timely objection is made to an expert’s
qualifications or methodologies in support of or in opposition to a motion for
summary judgment, any motion in accordance with Article 1425(F) to
determine whether the expert is qualified or the expert’s methodologies are
reliable shall be filed, heard and decided prior to the hearing on the motion
for summary judgment. La. C.C.P. art. 966(D)(3).
To defeat a properly supported motion for summary judgment, an
expert’s opinion must be more than a conclusory assertion about ultimate
legal issues. Nelson v. Shelat, 54,099 (La. App. 2 Cir. 8/18/21), 325 So. 3d
1170, writ denied, 21-01354 (La. 11/17/21), 327 So. 3d 997, citing
Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00),
755 So. 2d 226.
Conversion is an intentional tort and consists of an act in derogation
of the plaintiff’s possessory rights. Capers v. NorthPro Props. Mgmt., LLC,
53,919 (La. App. 2 Cir. 5/5/21), 321 So. 3d 502, writ denied, 21-00768 (La.
10/1/21), 324 So. 3d 1055. To constitute a conversion, an intentional
dispossession and/or exercise of dominion or control over the property of
another in denial of, or inconsistent with, the owner’s rights must be
established. Id. Any wrongful exercise or assumption of authority over
another’s goods, depriving him of the possession, permanently or for an
indefinite time, is a conversion. Fuller v. XTO Energy, Inc., 43,454 (La.
App. 2 Cir. 8/13/08), 989 So. 2d 298, writ denied, 08-2227 (La. 11/21/08),
10
996 So. 2d 1107. As in trespass, the lack of consent by the owner or
possessor is a prerequisite. Id.
In Dual Drilling Co. v. Mills Equip. Invs., Inc., 98-0343 (La. 12/1/98),
721 So.2d 853, the Louisiana Supreme Court, speaking of the action for
conversion, stated:
[I]t is available to an owner dispossessed as a result of an
offense or quasi-offense or, in other words, a “tort.” This action
is grounded on the unlawful interference with the ownership or
possession of a movable and is frequently termed an action for
“conversion” in Louisiana. A conversion is committed when
any of the following occurs: 1) possession is acquired in an
unauthorized manner; 2) the chattel is removed from one place
to another with the intent to exercise control over it; 3)
possession of the chattel is transferred without authority; 4)
possession is withheld from the owner or possessor; 5) the
chattel is altered or destroyed; 6) the chattel is used improperly;
or 7) ownership is asserted over the chattel. Frank L. Maraist &
Thomas C. Galligan, Louisiana Tort Law § 1-2, at 3 (1996 &
Supp. 1998)
The provisions of the Louisiana Mineral Code are supplementary to
those of the Louisiana Civil Code and are applicable specifically to the
subject matter of mineral law. La. R.S. 31:2 (“Article 2”).1 In the event of
conflict between the provisions of this Code and those of the Civil Code or
other laws, the provisions of the Mineral Code shall prevail. Id. If the
Mineral Code does not expressly or impliedly provide for a particular
situation, the Civil Code or other laws are applicable. Id.
Ownership of land includes all minerals occurring naturally in a solid
state. Article 5. Solid minerals are insusceptible of ownership apart from
the land until reduced to possession. Id. Ownership of land does not include
1
The provisions of this title may be referred to or cited either as Articles of the Mineral Code or as Sections of the Revised Statutes. Thus, Article 30 of the Mineral Code may also be referred to or cited as La. R.S. 31:30. Whenever reference is made herein to an Article of the Mineral Code, the same shall also relate to the corresponding Section of the Revised Statutes. La. R.S. 31:1. Pursuant to this comment, throughout this opinion, as an example, the pertinent articles will be referred to as “Article 1,” etc.
11
ownership of oil, gas and other minerals occurring naturally in liquid or
gaseous form or of any elements or compounds in solution, emulsion or
association with such minerals. Article 6. The landowner has the exclusive
right to explore and develop his property for the production of such minerals
and to reduce them to possession and ownership. Id. Minerals are reduced
to possession when they are under physical control that permits delivery to
another. Article 7. 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. Article 15. A mineral lease is a contract by which the lessee
is granted the right to explore for and produce minerals. Article 114.
The vesting of title to fugitive minerals, such as oil or gas, occurs
when the minerals are reduced to possession at the wellhead. Frey v. Amoco
Prod. Co., 603 So. 2d 166 (La. 1992). Thus, with respect to oil and gas,
possession marks both the vesting of title and mobilization. Id. A mineral
lease, one of the manners in which mineral rights are segregated from
ownership, is a contract by which the lessee is granted the right to explore
for and produce minerals. Id. Mineral leases are construed as leases
generally; and, wherever pertinent, codal provisions applicable to ordinary
leases are applied to mineral leases. Id.
From the foregoing, we conclude that PC met its burden of proof
under La. C.C.P. art. 966(D)(1) by pointing out to the court the absence of
factual support for one or more elements essential to Plaintiffs’ claim, i.e.,
ownership of the condensate, which resulted in the shift of the burden of
proof to Plaintiffs to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that PC is not entitled to
judgment as a matter of law. The 2012 Leases granted to Plaintiffs’ lessee,
12
AIX/Contango, the exclusive right to enter and use the land for all purposes
incident to the exploration for and production, ownership, possession and
transportation of minerals. They severed their right of ownership to all
minerals in exchange for a royalty to be paid to them by their lessee. Under
the Louisiana Mineral Code, the right of ownership of the condensate is
determined at the time of capture at the wellhead; thus, in this case,
ownership vested in Contango, not Plaintiffs. The burden shifted to
Plaintiffs to show there remained some genuine issue of material fact that
precluded the judgment.
Plaintiffs’ reliance on the Kimbrell affidavit to establish ownership of
the condensate is not well founded. Kimbrell’s statement that the minerals
belonged to the landowner, unsupported by any further documentation, made
a conclusory legal statement he is unqualified to assert. None of his
qualifications or expert witness experience involved the knowledge or
application of Louisiana law in general, or property law or mineral law,
specifically. The affiant made a general statement that the well owner
owned the minerals but failed to identify the owners or establish how
Plaintiffs were the owners of the condensate once the minerals were
extracted or severed from the land by Contango. Plaintiffs have failed to
provide proof that a genuine issue remains or that PC is not entitled to
judgment in its favor as a matter of law. For these reasons, the assignments
of error have merit.
CONCLUSION
For the reasons stated above, the judgment of the trial court denying
summary judgment is reversed, and judgment is entered granting summary
judgment in favor of Defendant-Applicant Petro-Chem Operating Company,
13
Inc. and against Plaintiffs-Respondents Mark A. Furlow, Candee C. Furlow,
McElwee Family Partnership, L.P., Mary Langford Franklin, Bric L.
Langford and Barbara E. Langford, Individually and as Class
Representatives. The suit is dismissed. Costs of this appeal are assessed
against Plaintiffs-Respondents.
REVERSED AND RENDERED.
14