Opinion
2022 CA 1296
06-02-2023
FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC, ET AL.
James Garner Counsel for Defendant/Third-Party Peter Hilbert, Jr. Plaintiff/Cross-Plaintiff/Appellant, Darnell Bludworth Texas Brine Company, LLC Martha Curtis Leopold Sher Jeffrey Kessler Christopher Chocheles New Orleans, Louisiana and Robert Percy, III Gonzales, Louisiana and Travis J. Turner Gonzales, Louisiana Glen E. Mercer Counsel for Defendants/Appellees, Kourtney Twenhafel Zurich American Insurance Company, New Orleans, Louisiana Steadfast Insurance Company, and and American Guarantee and Liability John K. Daley Insurance Company Denver, Colorado Pro Hac Vice Martin A. Stern Counsel for Defendant, Leigh Ann Schell Occidental Chemical Corporation Raymond Ward Sara Valentine New Orleans, Louisiana
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 23rd Judicial District Court In and for the Parish of Assumption State of Louisiana Trial Court Docket Number 34316, Div. "B" Hon. Thomas J. Kliebert, Jr., Ad Hoc Judge Presiding
James Garner Counsel for Defendant/Third-Party Peter Hilbert, Jr. Plaintiff/Cross-Plaintiff/Appellant, Darnell Bludworth Texas Brine Company, LLC Martha Curtis Leopold Sher Jeffrey Kessler Christopher Chocheles New Orleans, Louisiana and Robert Percy, III Gonzales, Louisiana and Travis J. Turner Gonzales, Louisiana
Glen E. Mercer Counsel for Defendants/Appellees, Kourtney Twenhafel Zurich American Insurance Company, New Orleans, Louisiana Steadfast Insurance Company, and and American Guarantee and Liability John K. Daley Insurance Company Denver, Colorado Pro Hac Vice
Martin A. Stern Counsel for Defendant, Leigh Ann Schell Occidental Chemical Corporation Raymond Ward Sara Valentine New Orleans, Louisiana
BEFORE: THERIOT, PENZATO, AND MILLER, JJ.
PENZATO, J.
In this appeal, Texas Brine Company, LLC challenges the trial court's March 25, 2021 judgment, which granted Zurich American Insurance Company, Steadfast Insurance Company, and American Guarantee and Liability Insurance Company, LLC's (collectively, "Zurich") motion for summary judgment and sustained Zurich's peremptory exception raising the objection of no cause of action. For the following reasons, we affirm in part, vacate in part, and deny the relief sought by Occidental Chemical Corporation ("Oxy") in its answer to this appeal.
In its March 25, 2021 judgment, the trial court denied Zurich's request for costs and attorney fees pursuant to La. C.C.P. art. 2004(C), which is not at issue in this appeal.
PERTINENT FACTS AND PROCEDURAL HISTORY
In Florida Gas Transmission Co., LLC v. Texas Brine Co., LLC, 2018-0218 (La.App. 1st Cir. 1/11/19), 272 So.3d 547, 551, writ denied, 2019-00510 (La. 9/24/19), 279 So.3d 385, and writ denied, 2021-00793 (La. 6/29/21), 319 So.3d 301, this court, pertinently, rendered summary judgment in favor of Zurich, dismissing Texas Brine's claims with prejudice (this opinion is referred to as "2018 CA 0218"). As noted, the Louisiana Supreme Court denied writs.
In February 2020, Texas Brine filed a petition to annul several judgments rendered by this court, including 2018 CA 0218 at issue in this appeal. Texas Brine maintained that the judgment in 2018 CA 0218 was obtained by an ill practice, particularly, this court's alleged failure to randomly allot the appeal in accordance with La. R.S. 13:319, as amended, eff. August 1, 2018.
Pertinent to the Florida Gas proceeding, Texas Brine also sought to annul 2018 CA 0062 (judgment in favor of A1G); and 2018 CA 0075, 2018 CA 1098, and 2018 CA 0068 (consolidated by this court, judgment in favor of Oxy). The appeals concerning these docket numbers have been assigned to different panels of this court. See Florida Gas Transmission Co., LLC v. Texas Brine, 2022 CA 1234, (considering the petition to annul as it relates to 2018 CA 0062) and Florida Gas Transmission Co., LLC v. Texas Brine, 2022 CA 1298 (considering the petition to annul concerning 2018 CA 0075 and 2018 CA 0068) and Florida Gas Transmission Co., LLC v. Texas Brine, 2021 CW 0446 (considering the petition to annul concerning 2018 CA 1098; writ referred to the panel assigned to decide 2022 CA 1298).
Prior to the amendment of La. R.S. 13:319, this court's internal rules provided that the first appeal filed in a trial court proceeding that generated more than one appeal was randomly allotted, upon the filing of the appellant's brief, to a three-judge panel with a primary judge designated as the writing judge. After that initial allotment, pursuant to a longstanding practice of allotment used by this court, every other appeal arising out of the same trial court proceeding was allotted to a three-judge panel that included the primary writing judge from the first appeal informally known as the "writing-judge rule." Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 2022-0990 (La.App. 1st Cir. 3/16/23),__So.3d__, 2023 WL 2531173, *1. Effective July 10, 2019, and codified on August 9, 2019, this court amended its internal rules to clarify that each appeal is randomly allotted and a primary writing judge is designated, regardless of prior appeals arising from the same trial court proceeding bearing the same trial court case number. See Internal Rules of Court - Louisiana Court of Appeal, First Circuit, Rule 2.3d(1)(c); Pontchartrain, __So.3d at__, 2023 WL 2531173 at *2.
Zurich responded to Texas Brine's nullity action by filing a peremptory exception raising the objection of no cause of action and, alternatively, a motion for summary judgment. Texas Brine opposed the exception and alternative motion. The trial court granted Zurich's motion for summary judgment and sustained Zurich's exception of no cause of action, thereby dismissing Texas Brine's petition to nullify 2018 CA 0218 with prejudice.
Texas Brine appeals, asserting that the trial court erred in its application of La. R.S. 13:319, as amended, and erred by rendering judgment in favor of Zurich.
MERITS OF TEXAS BRINE'S APPEAL
Upon our de novo review, we conclude the trial court properly granted Zurich's motion for summary judgment. See La. C.C.P. art. 966; Davis v. A Bar and Grill with a Bite, Inc., 2019-1928 (La. 3/16/20), 294 So.3d 1051, 1052 (A ruling on a motion for summary judgment is reviewed on a de novo basis, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate ~ i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.) Texas Brine's allegations of "ill practices" concerning this court's allotment of 2018 CA 0218 are merely conclusory. Texas Brine offered no evidence to show a deprivation of its legal rights. Texas Brine failed to demonstrate how it was deprived of the fundamental opportunity to fairly present its case to this court in the appeal of 2018 CA 0218 or how this court's allotment system caused or was in any way related to any adverse judgment. Texas Brine fully litigated 2018 CA 0218 up and until the Louisiana Supreme Court denied writs on September 24, 2019. See La. C.C.R art. 2004(A); Expert Oil & Gas, L.L.C. v. Mack Energy Co., 2016-0068 (La.App. 1st Cir. 9/16/16), 203 So.3d 1080, 1083-84; Kern Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La. 1983). Additionally, Texas Brine offered no evidence to show actual manipulation or prejudice that was a direct result of the manner in which this court allotted 2018 CA 0218. See Belle Pass Terminal Inc. v. Jolin, Inc., 2001-0149 (La. 10/16/01), 800 So.2d 762, 767.
See also Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 2022-0990 (La.App. 1st Cir. 3/16/23),__So.3d__, 2023 WL 2531173 and Pontchartrain Natural Gas System v. Texas Brine Co., LLC, 2022-1031 (La.App. 1st Cir. 5/9/23),__So.3d__, 2023 WL 3313619, wherein this court considered and rejected Texas Brine's annulment and ill practice arguments related to other judgments rendered by this court in related litigation.
Because we affirm summary judgment in favor of Zurich, we decline to reach the merits of Zurich's exception of no cause of action, finding the exception is moot. See Terry v. Schroder, 2021-1311 (La.App. 1st Cir. 6/3/22), 342 So.3d 1003, 1006-07; Pontchartrain, __So.3d at__, 2023 WL 2531173 at *3.
In its appeal brief, Zurich requested frivolous appeal damages pursuant to La. C.C.P. art. 2164. However, the proper procedure for an appellee to request frivolous appeal damages is to file either an answer to the appeal or a cross appeal. See La. C.C.P. art, 2133; Donaldson v. Guidry, 2021-1569 (La.App. 1st Cir. 7/8/22), 345 So.3d 433, 438, writ denied, 2022-01208 (La. 11/8/22), __ So.3d __. A brief constitutes neither, so an appellee cannot recover frivolous appeal damages if the request is first made in the appellee's brief. Donaldson, 345 So.3d at 438-39. Therefore, Zurich's request for frivolous appeal damages is denied.
OXY'S ANSWER
Oxy, a party in this litigation, answered Texas Brine's appeal, seeking reversal of various judgments rendered by the trial court concerning Texas Brine's petition to annul this court's docket numbers 2018 CA 0068, 2018 CA 0075, and 2018 CA 1098. Oxy also seeks an award of attorney fees and costs incurred in this court pursuant to La. C.C.P. art. 2004(C) and La. C.C.P. art. 2164.
The three docket numbers identified in Oxy's answer, and the related judgments from which it seeks relief, are not at issue in the subject appeal, which concerns only 2018 CA 0218 and the trial court's rulings on Zurich's motion for summary judgment and exception of no cause of action. Therefore, we deny Oxy's answer to the appeal. Furthermore, since Oxy is not the prevailing party in the underlying annulment action concerning 2018 CA 0218 or in this appeal, we also deny Oxy's request for attorney fees pursuant to La. C.C.P. art. 2004(C) and find Oxy is not entitled to frivolous appeal damages pursuant to La. C.C.P, art. 2164.
We recognize that another panel of this court in Pontchar-train,, __So.3d at__, 2023 WL 3313619 at *2 (Holdridge, J., agreeing in part, dissenting in part), awarded damages to Oxy pursuant to La. C.C.P. art. 2004(C) under similar facts. However, in our discretion, we decline to make a similar award for the reasons stated in this opinion.
DECREE
For the foregoing reasons, we vacate the portion of the trial court's March 25, 2021 judgment sustaining the peremptory exception raising the objection of no cause of action filed by Zurich American Insurance Company, Steadfast Insurance Company, and American Guarantee and Liability Insurance Company, LLC as moot.
We issue this summary disposition in accordance with Uniform Rules of Louisiana Courts of Appeal, Rule 2-16.2(A) (4), (6), and (10).
We affirm the portion of the March 25, 2021 judgment granting the motion for summary judgment filed by Zurich American Insurance Company, Steadfast Insurance Company, and American Guarantee and Liability Insurance Company, LLC and dismissing Texas Brine Company, LLC's petition to annul this court's judgment rendered in Florida Gas Transmission Co., LLC v. Texas Brine Co., LLC, 2018-0218 (La.App. 1st Cir. 1/11/19), 272 So.3d 547, writ denied, 2019-00510 (La. 9/24/19), 279 So.3d 385, and writ denied, 2021-00793 (La. 6/29/21), 319 So.3d 301.
We deny all relief requested in Occidental Chemical Corporation's answer to the appeal.
VACATED IN PART; AFFIRMED IN PART; ANSWER TO APPEAL DENIED.