Opinion
2022 CA 0744
12-19-2023
CALVIN J. HILL, INDIVIDUALLY AND AS THE EXECUTOR OF THE SUCCESSION OF ELNORA JOHNSON HILL v. TMR EXPLORATION, INC., PARK EXPLORATION, INC., AND VITOL RESOURCES, INC.
Brent K. Delee Kirby J. Guidry Baton Rouge, Louisiana Attorneys for Plaintiffs -Appellants Calvin Hill, et. al. Chad A. Aguillard Ali Zito Meronek New Roads, Louisiana and Thomas A. Nelson New Roads, Louisiana Attorneys for Plaintiffs -in - Intervention/ Appel] ants Roosevelt Hill, et. al. Monique M. Edwards Baton Rouge, Louisiana and Isaac Jackson, Jr. Plaquemine, Louisiana Attorneys for Plaintiff -in - Intervention/ Appellant Felix Hill David W. Leefe New Orleans, Louisiana and P. Matthew Jones Baton Rouge, Louisiana Attorneys for Appellee Schlumberger Technology Corporation
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Eighteenth Judicial District Court Parish of West Baton Rouge No. 41,245, Division B Honorable Tonya S. Lurry, Judge Presiding
Brent K. Delee Kirby J. Guidry Baton Rouge, Louisiana Attorneys for Plaintiffs -Appellants Calvin Hill, et. al.
Chad A. Aguillard Ali Zito Meronek New Roads, Louisiana and Thomas A. Nelson New Roads, Louisiana Attorneys for Plaintiffs -in - Intervention/ Appel] ants Roosevelt Hill, et. al.
Monique M. Edwards Baton Rouge, Louisiana and Isaac Jackson, Jr. Plaquemine, Louisiana Attorneys for Plaintiff -in - Intervention/ Appellant Felix Hill
David W. Leefe New Orleans, Louisiana and P. Matthew Jones Baton Rouge, Louisiana Attorneys for Appellee Schlumberger Technology Corporation
BEFORE: THERIOT, HOLDRIDGE, AND GREENE, JJ.
The Honorable Guy Holdridge, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
HOLDRIDGE, J.
Plaintiffs, Calvin Hill, et. al. and plaintiffs-in-intervention, Roosevelt Hill et. al. and Felix Hill (collectively "the Hills"), appeal a summary judgment dismissing their claims against defendant, Schlumberger Technology Corporation ("Schlumberger"). For the following reasons, we affirm in part, reverse in part, and remand.
The Calvin Hill plaintiffs are: Calvin J. Hill; Charles Edward Hill; Marian Hill Walker a/k/a Merion Hill Walker; Esquemon Anthony Hill; Rhonda Foster; Dr. Russell Hill; Russell Hill; Dietrich Duane Hill a/k/a Duane Dietrich Hill; Dewayne Hill; Pamela Hill; Vincent Hill; Jeffrey Hill; Shawn Hill; Mary Charles; Mary Hill; Kendra Hill; Bernadette Hill; Kenneth Amorio a/k/a Kenneth Amario; Monica Walker a/k/a Monica Whitaker; Dionne Hill; DuWana Hill; Kimsiana Hill-Lathan a/k/a Kimsiana Hill-Latham; Andre Hill; Napoleon Whitaker; Mary Ativie; Merion Jean Johnson; Camesha Stanton; Annette Whitaker-Woods a/k/a Annette Woods; Pernell Hill; Eurilee Hill; Karen Maze; Amos Lagarde; Ida Mae Hill Johnson; Shirley Lockman; Burnett Grevious; Albert Grevious; Stalette Brown; Emelda Hill; Amanda Harris; Leon Whitaker; Craig Hill; LaCora Whitaker; Monica Whitaker; Lee Whitaker; Rodney Hill; Edward Hill; Oran Hill and his heirs or representatives; Marcus Johnson; and Terrol Sanders.
The Roosevelt Hill plaintiffs-in-intervention are: Roosevelt Hill; Al ven Grevious a/k/a Alvin Grevious; Leo Hill; Demetria Jones a/k/a Dementia Jones; Kathryn Devezin-Joyner; Irene Sweeney; Douglas Joseph Sweeney; Debbie Marie Sweeney; Jacqueline Amanda Sweeney; Taylor Sweeney; Rachel Sweeney; JeVaughn Smith and Sonya Smith, individually and on behalf of Kristin Marie Charles; Kristina Charles; Ella Johnson; Victor Johnson; Lorenzo Hill; and Lorenzo Johnson.
PROCEDURAL AND FACTUAL BACKGROUND
This matter arises from a claim for subsurface trespass stemming from the drilling of an oil well. It has a complex factual and procedural history and has been before this Court previously. The Hills are owners of various undivided interests in a 22.768-acre tract of immovable property in West Baton Rouge Parish ("the Hill property"). In 2006, TMR Exploration, Inc. ("TMR") entered into an oil and gas mineral lease with A. Wilbert's Sons, LLC ("the Wilberts") to drill a well on the Wilberts' property located adjacent to the Hill property. Pursuant to the lease, TMR drilled an oil well located on the Wilbert property. Although TMR obtained a permit to directionally drill the well, the well also contained a horizontal component, which allegedly caused the bottom hole of the well to trespass beneath the Hill property almost two miles beneath the surface.
See e.g.. Hill v. TMR Exploration, Inc., 22-0036 (La.App. 1 Cir. 12/22/22), 2022 WL 17843781 (unpublished), writ denied. 2023-00204 (La. 4/12/23), 359 So.3d 26; Hill v. TMR Exploration, Inc., 2022-0037 (La.App. 1 Cir. 10/4/22), 353 So.3d 823, writ denied, 202201628 (La. 1/11/23), 352 So.3d 989; Hill v. TMR Exploration, Inc., 2016-0566 (La.App. 1 Cir. 6/13/17), 223 So.3d 556, 558, writ denied, 2017-1163 (La. 10/27/17), 228 So.3d 1227.
In 2007, TMR filed an application for a permit with the Louisiana Commissioner of Conservation; on May 18, 2007, TMR was issued a permit as the operator to drill a well on the Wilberts' property in Section 93. According to the Hills, TMR attached a plat to its drilling application showing the proposed location of the well, which erroneously depicted the Wilberts as the sole owners of all property in Section 93.
On February 4, 2014, Calvin Hill, individually and as the executor of the succession of Elnora Johnson Hill, filed suit for damages naming TMR and others involved in the operation of the well as defendants. Subsequently, the petition was amended to add additional plaintiffs who possessed an ownership interest in the Hill property. In their petitions, the Hills alleged that TMR committed subsurface trespass when the well was drilled in 2007 and that the trespass continued when TMR and the subsequent operators produced and sold oil from the well. Roosevelt Hill, et al. and Felix Hill filed petitions of intervention raising the same claims against TMR.
By a series of amending and supplemental petitions, the Hills added Schlumberger and Halliburton Energy Services ("Halliburton"), oilfield contractors who were hired by TMR to provide services during the drilling of the well, as defendants in the litigation. According to the petitions, TMR engaged the services of Schlumberger "to direct and steer" the path of the drill bit by using a Measured While Drilling (MWD) tool, other equipment, and personnel furnished by Schlumberger. The Hills alleged that, in December of 2007, using a sidewinder rig provided by BR Drilling, formerly known as "Sandia," the tools and measurements provided by Schlumberger, and pursuant to the directions and supervision of TMR employees, Schlumberger drilled the well to the bottom hole location, which is beneath the surface of the Hills' property. After reaching the bottom hole location, the Hills alleged that the well produced oil. They further alleged that TMR later engaged Halliburton to perform "fracking" operations of the well to increase oil production; Halliburton completed the fracking operations on January 25, 2008, and as a result, oil production substantially increased.
The Hills further alleged that TMR, utilizing the services of Halliburton, Schlumberger, and Sandia on behalf of TMR and the Wilberts, made works on the Wilberts' property by drilling and producing the well that resulted in the bottom hole of the well and 208 feet of well liner and wellbore being located beneath the Hills' property, causing damage thereto. According to the Hills, the defendants obtained oil production from beneath their property that was not measured and was commingled with the oil production of others, collected at the surface of the well, and sold by TMR and subsequent well operators, which caused damage to the Hills. In their petitions, the Hills alleged that Schlumberger, Halliburton, Sandia, and TMR, in the exercise of reasonable care, should have known that the directional drilling, completion, and fracking of the well in violation of Statewide Order 29E would result in damages to the Hills' property. As to Schlumberger and the other defendants, the Hills sought to recover damages for all minerals produced from the well without benefit of credit for the costs incurred in drilling and production of the well and for any other damages to the Hill's property, including those authorized by La. C.C. art. 667. Thus, the Hills asserted three causes of action against Schlumberger and Halliburton: subsurface trespass; liability under La. C.C. art. 667, which provides that "a proprietor" of immovable property may be liable for damages caused to its neighbors under certain circumstances; and general negligence.
In July of 2019, Halliburton filed a motion for summary judgment on the grounds that: Halliburton had no legal duty to protect the Hills from subsurface trespass; Halliburton was not a "proprietor" under La. C.C. art. 667; and the Hills would be unable to establish that Halliburton failed to exercise reasonable care in carrying out its fracking operations. In their oppositions to the summary judgment motion, the Hills addressed these grounds and also argued that summary judgment was improper because Halliburton remained liable under La. R.S. 9:2773, which provides that a contractor may be liable as a surety in the event a proprietor is held liable for damages under La. C.C. art. 667 resulting from the work of the contractor where the proprietor is unable to satisfy the claim against it.
On October 15, 2021, the trial court signed a judgment granting Halliburton's motion for summary judgment and dismissing the Hills' claims against Halliburton in their entirety, with prejudice, at their cost. In granting Halliburton's motion for summary judgment, the trial court issued written reasons wherein it concluded that Halliburton was not responsible for the trespass onto the Hills' property because Halliburton relied on the information provided to it by TMR and TMR admittedly failed to provide Halliburton with adequate information sufficient to prevent fracking on the Hills' property. The trial court further found that Halliburton did not qualify as a "proprietor" under La. C.C. art. 667 as it was merely a contractor hired to complete a task. Lastly, the trial court held that Halliburton did not owe a duty to the Hills, and therefore, the Hills could not prove negligence under a duty risk analysis. The Hills appealed from the trial court's judgment. Hill v. TMR Exploration, Inc., 2022-0687 (La.App. 1 Cir. 11/29/23), 2023 WL 8251997 (unpublished) ("Hill I").
Meanwhile, based on its similar status as an oilfield service contractor retained by the well operator to perform a specific task on the well, Schlumberger filed a motion for a summary judgment, or alternatively, a partial summary judgment, on September 30, 2021, seeking dismissal of all causes of action asserted by the Hills for reasons set forth in the trial court's summary judgment ruling as to Halliburton. As to the trespass action, Schlumberger argued that it was not responsible for TMR's trespass onto the Hills' property, asserting that it merely relied on information provided by TMR as the authorized operator of the well in possession of a drilling permit from the State. Schlumberger claimed that TMR provided no information that would have put Schlumberger on notice that its tools would be operated under the Hills' property. Secondly, Schlumberger urged that like Halliburton, it was a contractor hired to perform a specific task and was not a "proprietor" for the purposes of La. C.C. art. 667 liability. Lastly, Schlumberger claimed in its motion that it did not owe a legal duty to the Hills and therefore, the Hills could not meet their burden of proving negligence under a duty risk analysis. Schlumberger argued that its role was indistinguishable from that of Halliburton, and the trial court's holding that Halliburton did not owe a duty to the Hills constituted the law of the case applying equally to Schlumberger. Additionally, Schlumberger posited that even if there was a general duty of reasonable care owed by Schlumberger, there was no factual evidence to suggest that Schlumberger breached its duty of ordinary care in the performance of its contract work.
Schlumberger had filed prior motions for summary judgment as to the subsurface trespass and negligence claims. On April 15, 2019, Schlumberger filed a motion for partial summary judgment, which was supported by the affidavit of TMR's geologist and exploration manager Larry G. Frizzell and by the Hills' fifth amending petition; the trial court denied the partial summary judgment motion on August 16, 2019. On December 10, 2020, Schlumberger filed another summary judgment motion seeking the dismissal of all of the Hills' claims, which was supported by Mr, Frizzell's deposition, excerpts from Raymond J. Lasseigne's deposition, Schlumberger's invoices, and TMR's discovery responses. The trial court denied the motion on February 25, 2021, and Schlumberger sought writs, which were denied by this Court on July 20, 2021. Hill v. TMR Exploration, Inc., 2021-0221 (La.App. 1 Cir. 7/20/21), 2021 WL 3047018.
Schlumberger also posited that it had no factual or legal relationship to or responsibility for the property damage alleged by the Hills, which consisted of the value of the oil produced and sold by each operator. According to Schlumberger, in a subsurface trespass case, the actionable wrong is the removal of minerals by the trespasser with the attendant damages consisting of the value of the extract minerals. See William E. Crawford, 12 La. Civ. Law Treatise, Tort Law § 12.11 (2d ed.) (citing General Accident Fire and Life Assurance Corp. v. Humble Oil & Refining Co., 243 So.2d 865, 867 (La.App. 1 Cir. 1971)). However, Schlumberger did not produce, sell, or profit from the sale of the oil or the well operator's trespass.
It was undisputed that Schlumberger's tools functioned as intended and all services by its personnel on the well were performed in a reasonable and prudent manner in full compliance with industry standards. In addition, Schlumberger argued that its initial involvement in the TMR drilling operation did not constitute a trespass.
Documents attached to Schlumberger's summary judgment motion included: (1) excerpts from the deposition of Larry G. Frizzel, a TMR geologist and exploration manager; (2) TMR's partial response to Schlumberger's requests for admissions; and (3) the trial court's September 13, 2021 ruling on Halliburton's motion for summary judgment and the October 15, 2021 signed judgment in accordance with the ruling.
We note that the motion for summary judgment at issue on this appeal was filed and decided under La. C.C.P. art. 966 prior to its amendment by 2023 La. Acts No. 317, § 1, and 2023 La. Acts No. 368, § 1, which became effective on August 1, 2023.
In opposition to the motion, the Hills relied on the February 1, 2021 judgment of the trial court dismissing Schlumberger's earlier summary judgment motion, contending that it was the law of the case as opposed to the ruling on Halliburton's summary judgment. In addressing Schlumberger's contentions as to La. C.C. art. 667, the Hills argued that summary judgment was improper because Schlumberger remained liable as a surety to TMR under La. R.S. 9:2773 in the event TMR was held liable under La. C.C. art. 667 and was unable to satisfy the claim against it. The Hills then urged an additional alternative position, which differed from their opposition to the Halliburton summary judgment motion. They contended that because of references in Sections (B) and (C) of La. R.S. 9:2773 to construction contracts and agreements, Section (A) of the statute also applied only to construction contracts; therefore, they contended that La. R.S. 9:2773(A) did not apply in this non-construction case to limit Schlumberger's liability to that of a surety.
Louisiana Revised Statutes 9:2773(B) states: "Nothing in this Section shall be construed to relieve a contractor of any liability which he may incur as a result of his own negligence or the improper performance of the work performed under the construction contract." Louisiana Revised Statutes 9:2773(C) states: "The provisions of this Section shall apply to all construction agreements entered into after the effective date hereof and may be waived by the contractor."
The Hills attached to their opposition to the motion: (1) joint stipulations of fact entered into by one of the Hills, TMR, and Raymond Lasseigne, TMR's president, regarding the Hills' property; (2) the first page of Schlumberger's memorandum in support of its partial summary judgment motion regarding the subsurface trespass and negligence claims; (3) TMR and Mr. Lasseigne's cross-claim and third party demand; (4) TMR's interrogatory responses; and (5) excerpts of the deposition testimony of Mr. Lasseigne.
On January 6, 2022, the trial court signed a judgment granting Schlumberger's motion for summary judgment, ruling that TMR, as the authorized permit holder, employed Schlumberger to perform a specific task: "to provide the drill bit and guide it to a specific location," and pursuant to TMR's request, Schlumberger complied. According to the trial court, Schlumberger was not required to explore or examine the location but was working under the direction of TMR "to place the drill bit in a specific location," which by all admissions, was upon the Hills' property. The trial court concluded that TMR, as the permit holder, was responsible for ensuring that the location provided was correct and Schlumberger, in its capacity as a contractor, owed no duty to the Hills. On March 9, 2022, the trial court entered a judgment dismissing all of the Hills' claims against Schlumberger with prejudice.
Although the trial court stated that Schlumberger was to provide TMR with the drill bit, Schlumberger provided TMR with an MWD tool and a hydraulic mud motor. The MWD tool and mud motor were attached behind the drill bit to provide information about the drill bit's location in the earth and to adjust the direction of the drill bit at TMR's instruction.
This appeal, taken by the Hills, followed.
DISCUSSION
To support its motion for summary judgment, Schlumberger relied on the trial court's judgment granting Halliburton's summary judgment motion and dismissing it from the suit. Therefore, we must consider the decision this Court rendered on November 29, 2023, in the appeal taken by the Hills from that judgment. See Hill I, 2023 WL 8251997 at *2. As they contended in Hill I, the Hills argue in this appeal that the trial court erred in in granting the summary judgment motion, and in finding that Schlumberger was not responsible for any trespass because it relied on TMR's information and direction. Likewise, they also contend in this appeal, as they did in Hill I, that the trial court erred in finding that Schlumberger owed no duty to them. In Hill I, this Court affirmed the trial court's ruling granting Halliburton's summary judgment motion as to the trespass and negligence claims. Hill I, 2023 WL 8251997 at *3, 5. After conducting a de novo review in this matter, we likewise affirm that part of the trial court's judgment granting Schlumberger's motion for summary judgment as to the trespass and negligence claims.
The Hills contend that the trial court erred in granting the summary judgment motion by finding that Schlumberger was working under the direction of TMR, arguing that Schlumberger was an independent contractor, and therefore had a legal duty to refrain from operations under the Hill property.
We note that in its brief Schlumberger says the Hills abandoned their claims under La. C.C. art. 667 and general negligence, citing Uniform Rules of Louisiana Courts of Appeal, Rule 1-3, which provides that the courts of appeal shall review issues that were submitted to the trial court and that are contained in assignment of error, "unless the interest of justice requires otherwise."
Hill I also involved the issue of Halliburton's liability under La. C.C. art. 667 and La. R.S. 9:2773, which were at issue in the trial court in both Halliburton's and Schlumberger's summary judgment motions. Hill I, 2023 WL 8251997 at *3. As to the Hills' claims pursuant to La. C.C. art. 667, this Court agreed with the trial court's conclusion that Halliburton was not a proprietor under La. C.C. art. 667. Hill I, 2023 WL 8251997 at *3. This Court then discussed La. R.S. 9:2773(A), which concerns a contractor's liability as a surety in the event a proprietor is held liable under La. C.C. art. 667. Hill I, 2023 WL 8251997 at *3-5. Louisiana
This Court applied the version of La. R.S. 9:2773 in effect at the time Halliburton fracked the well in January of 2008. Louisiana Revised Statutes 9:2773 was amended by 2021 La. Acts No. 245, § 1, to be applied to any suit filed on or after the effective date of August 1, 2021. The amendment limited a contractor's obligation to act as a surety for a proprietor under La. R.S. 9:2773 to instances in which the proprietor was responsible for damages caused by ultrahazardous activity.
Revised Statutes 9:2773(A) at that time stated:
It is the public policy of the state that the responsibility which may be imposed on an agent, contractor, or representative by reason of the responsibility of proprietors under Article 667 of the Louisiana Civil Code shall be limited solely to the obligation of such agent, contractor, or representative to act as the surety of such proprietor in the event the proprietor is held to be responsible to his neighbor for damage caused him and resulting from the work of such agent, contractor, or representative, and only in the event the proprietor is unable to satisfy any claim arising out of such damage. The agent, contractor, or representative who is responsible for damages, as limited by this Section, shall have a right of action against the proprietor for any damages, costs, loss or expense which he may suffer in his capacity as the surety of the proprietor.See Hill I, 2023 WL 8251997 at *4. This Court concluded that La. R.S. 9:2773 was not limited to contractors performing construction work, thereby rejecting the Hills' contentions that it did not apply based on references in Sections (B) and (C) of La. R.S. 9:2773. Hill I, 2023 WL 8251997 at *3 n.8. This Court also stated that TMR, as a lessee of the Wilbert property deriving its right to drill a well on the property from its owner, could potentially qualify as a proprietor under La. C.C. art. 667, and therefore potentially would be liable to the Hills for damages to their property. Hill I, 2023 WL 8251997 at *5. This Court determined that in addition to unresolved issues of material fact regarding TMR's potential liability as a proprietor under La. C.C. art. 667, there were genuine issues of material fact as to TMR's ability to satisfy any judgment rendered against it under La. C.C. art. 667, and Halliburton's potential liability as a legal surety under La. R.S. 9:2773. Hill I, 2023 WL 8251997 at *5. Therefore, this Court reversed the trial court's grant of the summary judgment insofar as it dismissed the Hills* claim against Halliburton as a legal surety for TMR pursuant to La. R.S. 9:2773 and remanded the matter to the trial court for further proceedings.
In the instant appeal the Hills did not raise any assignments of errors or make any arguments in brief as to whether Schlumberger was a proprietor under La. C.C. art. 667 or whether Schlumberger was a surety under La. R.S. 9:2773, although issues were raised in the trial court in the Schlumberger summary judgment motion as to La. C.C. art. 667 and as to La. R.S. 9:2773 in the Hills' opposition to the motion. In their brief, the Hills stated that because the trial court did not issue a ruling on these issues, they were not "the subject of this appeal." We note that appellate courts review judgments and not reasons for judgment. Wooley v. Lucksinger, 2009-0571 (La. 4/1/11), 61 So.3d 507, 572; Tucker v. Chatfield, 2023-0343 (La.App. 1 Cir. 11/9/23), ___So.3d ___, ___. The written reasons for judgment are merely an explication of the trial court's determinations and do not alter, amend, or affect the final judgment being appealed. Tucker, __So.3d at___. Additionally, because this Court reviews summary judgments de novo, we afford no deference to the trial court's underlying reasoning for its judgment. Tucker, ___So.3d at ___. Therefore, in reviewing the trial court's grant of Schlumberger's motion for summary judgment, we must consider La. R.S. 9:2773. Moreover, as stated by this Court in Hill I, regardless of whether it was specifically plead by any of the parties, in seeking a summary judgment, the motion, memorandum, and supporting documents must show that the mover is entitled to judgment as a matter of law. Hill I, 2023 WL 8251997 at *5 n.11, citing La. C.C.P. art. 966(A)(3). Louisiana Revised Statutes 9:2773 is substantive law potentially applicable to this matter under the facts alleged by the Hills, and must be considered in this appeal as it was in Hill I.
We find the reasoning set forth by this Court as to La. R.S. 9:2773 in Hill I to be equally applicable herein. Based on our de novo review in the present case, we find that the trial court improperly granted Schlumberger's motion for summary judgment in its entirety. In addition to unresolved issues of material fact regarding TMR's potential liability as a proprietor under La. C.C. art. 667, there are genuine issues of material fact as to TMR's ability to satisfy any judgment rendered against it under La. C.C. art. 667 and Schlumberger's potential liability as a legal surety under La. R.S. 9:2773. Hill I, 2023 WL 8251997 at *5. Although summary judgment dismissing the Hills' claims against Schlumberger as a principal was proper since La. R.S. 9:2773 limits Schlumberger's potential liability to that of a surety and no evidence of Schlumberger's negligence was presented, the summary judgment was improper to the extent it dismissed the claim against Schlumberger as a surety for TMR under La. R.S. 9:2773. See Hill I, 2023 WL 8251997 at *5. Since there are disputed issues of fact as well as questions of law as to whether La. R.S. 9:2773 actually applies to Schlumberger, we must reverse that part of the trial court's judgment granting Schlumberger's motion for summary judgment.
CONCLUSION
The March 9, 2022 judgment of the trial court granting summary judgment in favor of Schlumberger Technology Corporation dismissing the Hills' claims against Schlumberger Technology Corporation, with prejudice, is reversed insofar as it dismissed the Hills' claim against Schlumberger Technology Corporation as a legal surety for TMR Exploration, Inc., pursuant to La. R.S. 9:2773 in accordance with our opinion in Hill v. TMR Exploration, Inc., 2022-0687 (La.App. 1 Cir. 11/29/23), 2023 WL 8251997 (unpublished). The March 9, 2022 judgment is affirmed in all other respects. This matter is remanded to the trial court for further proceedings consistent with this opinion. The costs of this appeal are assessed one-half to the Hills and one-half to Schlumberger Technology Corporation.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.