Florida Gas Transmission Company, LLC v. Texas Brine Company, LLC ( 2023 )


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  •                      NOT DESIGNATED FOR PUBLICATION
    STATE OF LOUISIANA
    COURT OF APPEAL
    FIRST CIRCUIT
    DOCKET NUMBERS
    2022 CA 1298 AND 2021 CW 0446
    FLORIDA GAS TRANSMISSION COMPANY, LLC
    VERSUS
    TEXAS BRINE COMPANY, LLC, ET AL.
    Judgment Rendered:
    JUL 10 2023
    ON APPEAL FROM THE
    23RD JUDICIAL DISTRICT COURT, DIVISION B
    ASSUMPTION PARISH, LOUISIANA
    DOCKET NUMBER 34,316
    HONORABLE THOMAS J. KLIEBERT, JR., PRESIDING AD HOC JUDGE
    Leopold Z. Sher                        Attorneys for Appellant/ Respondent
    James M. Garner                        Texas Brine Company, LLC
    Peter L. Hilbert, Jr.
    Martha Curtis
    Jeffrey D. Kessler
    Amanda R. Schenck
    Darnell Bludworth
    New Orleans, Louisiana
    and
    Travis J. Turner
    Gonzales, Louisiana
    and
    Robert Ryland Percy, III
    Gonzales, Louisiana
    and
    Royce I. Duplessis
    New Orleans, Louisiana
    Martin A. Stern                        Attorneys for Appellee/ Relator
    Leigh Ann Schell                       Occidental Chemical Corporation
    Raymond P. Ward
    New Orleans, Louisiana
    and
    Kathy Patrick (pro hac vice)
    Sam W. Cruse ( pro hac vice)
    Laura Kissel Cassidy ( pro hac vice)
    Caitlin Halpern ( pro hac vice)
    Houston, Texas
    BEFORE:       WELCH, NESTER, and GREENE, 33.
    l
    GREENE, J.
    In this appeal,      Texas Brine Company, LLC challenges a trial court judgment
    dismissing its petition to annul two previous judgments of this Court.                      In a related writ
    application referred to this panel for decision, and in an answer to the appeal, Occidental
    Chemical Corporation ( Oxy) challenges the same trial court judgment insofar as the trial
    court refused to dismiss Texas Brine' s petition to annul a third judgment of this Court.
    After review, we affirm the judgment in part, reverse the judgment in part, vacate the
    judgment in part, grant the writ, render judgment dismissing Texas Brine``s petition as to
    the third judgment, and render judgment in Oxy' s favor for attorney fees.
    PERTINENT FACTUAL AND PROCEDURAL HISTORY
    In February 2020, Texas Brine Company, LLC filed a petition to annul several of
    this Court' s judgments for an " ill practice," alleging this Court failed to randomly allot, or
    re -allot, those appeals in accordance with La. R. S. 13: 319, as amended, effective August
    1, 2018. 1 ( R4.832) The three judgments Texas Brine challenges here were rendered by
    this Court in Florida Gas Transmission Company, LLC v Texas Brine Company, LLC, 18-
    0068 ( La. App. 1 Cir. 7/ 11/ 19), 
    2019 WL 3025236
     ( unpublished), writ denied, 19- 
    01124 La. 7
    / 17/ 19),   
    277 So. 3d 1180
    ; Florida Gas Transmission Company, LLC v. Texas Brine
    Company, LLC, 18- 0075 c/ w 0241 c/ w 0796 ( La. App. 1 Cir. 7/ 1/ 19), 
    285 So. 3d 1093
    ,
    writ denied, 19- 01124 ( La. 7/ 17/ 19), 
    277 So. 3d 1180
    ; and, Florida Gas Transmission
    Company, LLC v. Texas Brine Company, LLC, 18- 1098 ( La. App.                         1 Cir. 7/ 11/ 19), 
    281 So. 3d 9
    , writ denied, 19- 01455 ( La. 11/ 12/ 19), 
    282 So. 3d 227
    .                  Herein, we reference
    these judgments as Florida Gas 0068, Florida Gas 0075, and                              Florida Gas 1098,
    respectively.
    Oxy responded to Texas Brine' s nullity action by filing exceptions of no cause of
    action and peremption and, alternatively, a motion for summary judgment.                           In a March
    1 In its petition, Texas Brine also sought annulment of this Court``s judgments in 2018 CA 0062 and 2018
    CA 0218. This Court has recently affirmed judgments dismissing Texas Brine' s nullity petition as to those
    judgments. See Florida Gas Transmission Company, LLC v. Texas Brine Company, LLC, 22- 1234 ( La. App.
    1 Cir. 6/ 2/ 23), _ So. 3d—,    
    2023 WL 3
    $ 62048 ( affirming Florida Gas Transmission Company, LLC v.
    Texas Brine Company, LLC, 18- 0062 ( La. App. 1 Cir. 1/ 11/ 19), 
    2019 WL 168583
     ( unpublished), writdenied,
    21- 00794 ( La. 6/ 29/ 21), 
    319 So. 3d 299
    ) and Florida Gas Transmission Company, LLC v. Texas Brine
    Company, LLC, 22- 1296 ( La. App. 1 Cir. 6/ 2/ 23), 
    2023 WL 3860532
     ( unpublished) ( affirming Florida Gas
    Transmission Company, LLC v. Texas Brine Company, LLC, 18- 0218 ( La. App. 1 Cir, 1/ 11/ 19),         
    272 So. 3d 547
    , writs denied, 21- 0793 ( La. 6/ 29/ 21), 
    319 So. 3d 301
    , 19- 00510 ( La. 9/ 24/ 19), 
    279 So. 3d 385
    .
    2
    25, 2021 judgment, the trial court granted Oxy's motion for summary judgment, in part,
    and its exception of no cause of action, in part, and dismissed Texas Brine's nullity petition
    as to Florida Gas 0068 and Florida Gas 0075, with prejudice.             The trial court denied Oxy's
    motion and exception as to Florida Gas 1098. The trial court also denied Oxy's exception
    of peremption and its request for attorney fees and costs.
    In this appeal, Texas Brine challenges the March 25, 2021 judgment insofar as it
    dismissed the nullity petition as to Florida Gas 0068 and Florida Gas 0075.                   In its writ
    application to this Court, docket number 2021 CW 0446, 2- Oxy challenges the judgment
    insofar as the trial court refused to also dismiss Texas Brine's nullity petition as to Florida
    Gas 1098. Oxy also filed an answer to Texas Brine's appeal, seeking modification of the
    judgment's ruling in Florida Gas 1098, on peremption, and requesting an award of
    reasonable attorney fees and costs it incurred in the trial court and in this Court.
    DISCUSSION
    A motion for summary judgment shall be granted if the motion, memorandum,
    and supporting documents show there is no genuine issue of material fact and that the
    mover is entitled to judgment as a matter of law. La. C.C. P. art. 966(A)( 3). The burden
    of proof rests on the party moving for summary judgment.                     Nevertheless, if the mover
    will not bear the burden of proof at trial on the issue that is before the court on the
    motion, the mover's burden does not require him to negate all essential elements of the
    adverse parry'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.    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.             La. C. C. P. art. 966( D)( 1).     In determining whether
    summary judgment is appropriate, an appellate court reviews evidence de novo under
    the same criteria that govern the trial court's determination of whether summary
    judgment is appropriate.        Porche v. Naquin, 22- 0064 ( La. App. 1 Cir. 9/ 26/ 22),       
    353 So. 3d 796
    , 800, writ denied, 22- 01603 ( La. 2/ 24/ 23), 
    356 So. 3d 340
    .
    2 Florida Gas Transmission Company, LLC v. Texas Brine Company, LLC, 21- 0446 ( La. App. 1 Cir. 12/ 19/ 22)
    unpublished writ action referring writ to merits panel).
    3
    Under La. C. C. P. art. 2004( A),   any final judgment obtained by fraud or ill practices
    may be annulled. A party seeking to annul a judgment based on fraud or ill practices
    must show: (      1) the circumstances under which the judgment was rendered showed the
    deprivation of legal rights of the parry seeking relief, and (          2) the enforcement of the
    judgment would have been unconscionable and inequitable.                    Belle Passe Terminal, Inc.
    v. Jolin, Inc., 01- 0149 ( La. 10/ 16/ 01),     
    800 So. 2d 762
    , 766. The party seeking to annul a
    judgment must prove both of the above criteria to succeed in his nullity action.                 Id. at
    768; see Riddle v. PremierP/aza of Monroe, L. L. C., 51, 173 ( La. App. 2 Cir. 2/ 15/ 17),         
    216 So. 3d 170
    , 173.
    In support of its motion for summary judgment, Oxy asserted, among other
    arguments, that Texas Brine could not carry its burden of proving that enforcement of
    any of the subject judgments would have been unconscionable and inequitable, because
    even if allotted differently, there is no proof that the judgments would have been decided
    differently. ( R6. 1253)
    Upon our de novo review, we conclude summary judgment is proper as to all three
    of the subject judgments, and Texas Brine's nullity petition should be dismissed as to
    them all.      As found by this Court in Pontchartrain Natural Gas System v. Texas Brine
    Company, LLC, 22- 0990 ( La. App. 1 Cir. 3/ 16/ 23),             So. 3d ,       
    2023 WL 2531173
    , * 4
    Pontchartrain 0990),3 when reviewing a substantially similar nullity petition, Texas
    Brine' s nullity petition herein merely contains conclusory allegations regarding how this
    Court's allotment of appeals constitutes an " ill practice." (               R4. 832)   Texas Brine' s
    allegations focus on establishing this Court's failure to comply with the amendment to La.
    R. S. 13: 319 and when Texas Brine discovered the alleged " ill practice." ( R4. 832, 837)
    3 Pontchartrain 0990 specifically dealt with this Court's judgment rendered under docket number 2018 CA
    0241. However, as previously noted, docket number 2018 CA 0241 was one of three consolidated appeals
    decided in Florida Gas 0075– the other two docket numbers were 2018 CA 0075 and 2018 CA 0796. The
    issues and judgments reviewed by this Court in 2018 CA 0241, 2018 CA 0075, and 2018 CA 0796 were
    substantively the same. Thus, the Pontchartrain 099oCourt's reasoning as to 2018 CA 0241 equally applies
    to this appeal of 2018 CA 0075.
    4 See also Florida Gas Transmission Company, LLC v. Texas Brine Company, LLC, 22- 1296 ( La. App. 1 Cir.
    
    2023 WL 3860532
    , * 2 ( unpublished) and Pontchartrain Natural Gas System. v. Texas Brine
    612123),
    Company, LLC., 22- 1031. ( La. App. 1 Cir. 5/ 9/ 23), — So. 3d 2023 wL 3313619, * 1 ( both cases finding
    Texas Brine' s allegations conclusory).
    4
    Although Texas Brine contends this Court' s failure deprived it of its right to random
    allotment, Texas Brine does not allege prejudice,      nor does it set forth facts showing
    prejudice, or that the outcome of Florida Gas 0068, Florida Gas 0075, or Florida Gas 1098
    would have been different had this Court done what Texas Brine believes was proper.
    See Pontchartrain 0990, 
    2023 WL 2531173
     at * 4.
    Further, we note that the three subject judgments are all based on a previous
    judgment rendered under this Court' s docket number 2017 CA 0304, wherein this Court
    held that an amended operating agreement between Texas Brine and Oxy required that
    an arbitration panel determine the arbitrability of the parties`` disputes. See Florida Gas
    Transmission Company, LLC v. Texas Brine Company, LLC, 17- 0304 ( La. App. 1 Cir.
    12/ 6/ 18),   
    267 So. 3d 633
    , 637, writ denied, 19- 0333 ( La. 6/ 26/ 19),   
    275 So. 3d 875
    Florida Gas 0304' 9. Thus, based on Florida Gas 0304, this Court found that, because
    Texas Brine and Oxy delegated exclusive authority to an arbitration panel to decide the
    arbitrability of claims between them, the trial court erred: in finding the salt lease was
    terminated by confusion ( as held in Florida Gas 0075); in ordering the arbitration panel
    to abide by its confusion ruling ( as held in Florida Gas 0068);      and,   in vacating the
    arbitration panel' s ruling that the salt lease had not terminated by confusion ( as held in
    Florida Gas 1098). See Florida Gas 0075, 285 So. 3d at 1101; Florida Gas 0068, 
    2019 WL 3025236
     at *    1; Florida Gas 1098, 281 So. 3d at 14. As any panel of this Court would have
    been constrained to follow Florida Gas 0304 in deciding Florida Gas 0075, Florida Gas
    0068, and Florida Gas 1098, Texas Brine has failed to demonstrate how it was deprived
    of the fundamental opportunity to fairly present its case to this Court in the appeal of any
    of the subject judgments or how this Court' s allotment system caused or was in any way
    related to any adverse judgment. See Pontchartrain 0990, 
    2023 WL 2531173
    , at * 4.
    Further, Texas Brine fully litigated Florida Gas 0068, Florida Gas 0075, and Florida
    Gas 1098 up and until the Louisiana Supreme Court denied writs in all three cases.      See
    Pontchartrain 0990, 
    2023 WL 2531173
     at * 4. Thus, Texas Brine' s allegations do not to
    demonstrate that the enforcement of any of these judgments would be unconscionable
    or inequitable, and without this proof, Texas Brine cannot succeed on its nullity action.
    See Belle Pass Terminal, Inc., 800 So. 2d at 768; Riddle, 
    216 So. 3d at 173
    .
    5
    Accordingly, we conclude the trial court properly granted Oxy's motion for
    summary judgment as to Florida Gas 0068 and Florida Gas 0075 and erred in failing to
    also grant the motion as to Florida Gas 1098. We therefore will affirm the March 25,
    2021 judgment insofar as it dismissed Texas Brine's nullity petition as to Florida Gas 0068
    and Florida Gas 0075.     We will also grant Oxy's writ and render summary judgment in
    Oxy's favor, dismissing Texas Brine' s nullity petition as to Florida Gas 1098. We decline
    to reach the merits of Oxy' s exceptions of no cause of action and peremption, finding the
    exceptions moot.     See Terry v. Schroder, 21- 1311 ( La. App. 1 Cir. 6/ 3/ 22), 
    342 So. 3d 1003
    , 1006.
    ANSWER TO THE APPEAL
    In its answer to the appeal, Oxy contends the trial court erred in denying its
    request for attorney fees and costs that it incurred in the trial court under La. C. C. P. art.
    2004( C).   Oxy also seeks an award of attorney fees and costs incurred in this Court under
    La. C. C. P. art. 2004( C) or as damages for frivolous appeal under La. C. C. P. art. 2164.
    Under La. C. C. P. art. 2004( C),   the court may award reasonable attorney fees
    incurred by a prevailing party in an action to annul a judgment obtained by ill practices.
    A trial court has much discretion in determining whether to award the prevailing party
    such attorney fees, and we will not disturb that ruling absent an abuse of discretion.
    Stevens v. St. Tammany Parish Government, 21- 0686 ( La. App. 1 Cir. 2/ 25/ 22),        
    2022 WL 575377
    , * 4 ( unpublished), writ denied, 22- 00661 ( La. 6/ 22/ 22), 
    339 So. 3d 642
    .      Here,
    we find no abuse of discretion by the trial court, since Oxy only partially prevailed below
    in defending Texas Brine's nullity petition.       However, we find that Oxy presents a
    compelling argument for an award of reasonable attorney fees for successfully defending
    and fully prevailing in this appeal and in its related writ application, which are generally
    duplicative of multiple other similar nullity action appeals decided by this Court.
    Accordingly, we award Oxy $ 10, 000 in attorney fees for defending this appeal of two
    judgments and for prevailing on its writ application as to a third judgment.       See Florida
    Gas Transmission Company, LLC, 22- 1234 ( La. App. 1 Cir. 6/ 2/ 23),         So. 3d ,      
    2023 WL 3862048
    , * 4- 5 and Pontchartrain 0990, 
    2023 WL 2531173
     at *              4- 5 ( both cases
    2
    awarding Oxy $ 5, 000 for defending an appeal of a judgment affirming a single appellate
    judgment).
    CONCLUSION
    For reasons expressed herein, we rule as follows:
    We affirm the March 25, 2021 judgment insofar as it granted Occidental Chemical
    Corporation' s motion for summary judgment and dismissed Texas Brine's nullity petition
    as to this Court' s judgments in Florida Gas Transmission Company, LLC v. Texas Brine
    Company, LLC, 18- 0068 ( La. App. 1 Cir. 7/ 11/ 19),   
    2019 WL 3025236
     ( unpublished),    writ
    denied, l9-01124 ( La. 7/ 17/ 19),   
    277 So. 3d 1180
    ; and Florida Gas Transmission Company,
    LLC v. Texas Brine Company, LLC, 18- 0075 c/ w 0241 c/ w 0796 ( La. App. 1 Cir. 7/ 1/ 19),
    
    285 So. 3d 1093
    , writ denied, 19- 01124 ( La. 7/ 17/ 19), 
    277 So. 3d 1180
    .
    We reverse the March 25, 2021 judgment insofar as it denied Occidental Chemical
    Corporation's motion for summary judgment seeking dismissal of Texas Brine' s nullity
    petition as to this Court's judgment in Florida Gas Transmission Company v. Texas Brine
    Company, LLC, 18- 1098 ( La. App. 1 Cir. 7/ 11/ 19), 
    281 So. 3d 9
    , writ denied, 19- 
    01455 La. 11
    / 12/ 19),   
    282 So. 3d 227
    .    We grant Occidental Chemical Corporation' s writ
    application in 2021 CW 0446 and render judgment dismissing Texas Brine's nullity petition
    as to this Court's judgment in Florida Gas Transmission Company v. Texas Brine
    Company, LLC, 18- 1098 ( La. App. 1 Cir. 7/ 11/ 19), 
    281 So. 3d 9
    , writ denied, 19- 
    01455 La. 11
    / 12/ 19), 
    282 So. 3d 227
    .
    We vacate the March 25, 2021 judgment insofar as it granted Occidental Chemical
    Corporation' s peremptory exception pleading the objection of no cause of action in part,
    finding this exception to be moot.
    We    award     Occidental   Chemical   Corporation $   10, 000   in attorney fees for
    successfully defending this appeal and for prevailing on the related writ.
    All costs of the appeal are assessed to Texas Brine Company, LLC.
    WRIT GRANTED; JUDGMENT AFFIRMED IN PART; JUDGMENT REVERSED IN
    PART; JUDGMENT VACATED IN PART; AWARD OF ATTORNEY FEES RENDERED.
    7
    

Document Info

Docket Number: 2022CA1298

Filed Date: 7/10/2023

Precedential Status: Precedential

Modified Date: 7/10/2023