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

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
6
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 Appel lee/ 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 viae)
Caitlin Halpern ( pro hac vice)
Houston, Texas
BEFORE: WELCH, HESTER, and GREENE, 33.
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 App. 1 Cir. 7/ 11/ 19), 2019 WL 3025236 ( unpublished), writ denied, 19- 01124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- 01. 124 ( 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 Or. 6/ 2/ 23), _ So. 3d_, 2023 WL 3852048 { aLfirming Florida Gas Transmission Company, LLC v.
Texas Brine Company, LLC, 18- 0062 ( La. App. 1 Cir. 1/ 11/ 19), 2019 WL 168583 ( unpublished), wdtdenied,
319 So. 3d 299) and Florida Gas Transmission Company, LLC v. Texas Brine
21- 00794 ( La. 6129/ 21),
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/ 29121), 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 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. 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 parry 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 party 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. Premier Plaza ofMonroe, 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 .5)1stem 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." ( 114. 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 0990 Court'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,
6/ 2/ 23), 2023 WL 3860532, * 2 ( unpublished) and Pontchartrain Natural Gas System. v. Texas Brine
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 876Florida 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.
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
10031 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/ 2.2/ 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 Or. 6/ 2/ 23), So. 3d , 2023
WL 3862048, * 4- 5 and Pontchartrain 0990, 2023 WL 2531173 at * 4- 5 ( both cases
a
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, 19- 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 Or. 7/ 1/ 19),
285 So. 3d 1093, writ denied, 19- 01124 ( La. 7/ 17/ 1. 9), 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/ 12119), 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.