Florida Gas Transmission Company, LLC v. Texas Brine Company, LLC ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0054
FLORIDA GAS TRANSMISSION COMPANY
VERSUS
TEXAS BRINE COMPANY, LLC, ET AL.
Judgment Rendered: JAN 0 6 2020'
Appealed from the 23rd Judicial District Court
In and for the Parish of Assumption
State of Louisiana
Case No. 34, 316
The Honorable Thomas J. Kliebert, Jr., Judge Presiding
Leopold Z. Sher Attorneys for Third -Party
James M. Garner Plaintiff/Appellant,
Peter L. Hilbert, Jr. Texas Brine Company, LLC
Jeffrey D. Kessler
David A. Freedman
New Orleans, Louisiana
Robert Ryland Percy, III
Gonzales, LA
Roy C. Cheatwood Attorneys for Third -Party
Kent A. Lambert Defendant/Appellee
Adam B. Zuckerman Vulcan Materials Company
Colleen C. Jarrrott
Matthew S. Chester
Matthew C. Juneau
New Orleans, Louisiana
Tony M. Clayton
Port Allen, Louisiana
BEFORE: McDONALD, THERIOT, AND PENZATO, JJ.
PENZATO, J.
Texas Brine Company, LLC ( Texas Brine), appeals a September 7, 2017
judgment sustaining a declinatory exception raising the objection of lis pendens
filed by Vulcan Materials Company ( VMC), as a third -party defendant. The
judgment dismissed " any and all claims, demands, and/ or allegations asserted by
Texas Brine] against VMC ... WITHOUT PREJUDICE[,] in favor of the first -
filed set of claims and demands in related case ..." without declaring which of the
multiple sinkhole cases was the first -filed suit. For the following reasons, we
dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background of this litigation is well known to
both this court and the parties. However, we briefly reiterate the background in
order to place the present case in its proper context. This appeal relates to one of
multiple lawsuits against Texas Brine filed after the development of a sinkhole in
August 2012 near Bayou Come in Assumption Parish, Louisiana. As a result of
damages arising out of the formation of the sinkhole, Texas Brine was sued in
several lawsuits brought by numerous plaintiffs. In this suit, Florida Gas
Transmission Company, LLC ( Florida Gas) originally sued Texas Brine claiming
Texas Brine' s negligent mining operation of a salt cavern caused the sinkhole that
damaged Florida Gas' s pipeline facilities. In response, in this suit and in other
sinkhole suits, Texas Brine filed duplicative third -party demands against multiple
defendants, including VMC, seeking indemnification, contribution, and
reimbursement for response costs and expenses.
As the litigation progressed in each of the separate lawsuits, some of the
third -party defendants, including VMC, filed declinatory exceptions of lis pendens.
VMC sought the dismissal of all claims, demands, and/ or allegations asserted by
Texas Brine against it. VMC maintained that any claims, demands, and/ or
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allegations made by Texas Brine against it in the present suit should be dismissed,
claiming that the first -filed sinkhole related lawsuit is Marchand v. Texas Brine
Company, LLC, No. 34, 270, Div. " A", 23rd Judicial District Court, Parish of
Assumption. The district court granted VMC' s declinatory exception of lis
pendens on September 7, 2017. After the dismissal of VMC, this case and two
other cases ( Crosstex Energy Services, LP, et al. v. Texas Brine Company, LLC, et
al., No. 34, 202 ( 23rd JDC) and Pontchartrain Natural Gas System v. Texas Brine
Company, LLC, No. 34, 265 ( 23rd JDC)), known as the " Pipeline Cases" were
jointly tried in a Phase I liability trial in September, October, and November of
2017, with fault being apportioned among three defendants. After motions for new
trial were filed, the district court signed a judgment on April 18, 2018,
reapportioning fault among six parties.
The September 7, 2017 judgment sustained the exception of lis pendens, and
dismissed without prejudice any and all claims, demands, and/ or allegations
asserted by Texas Brine against VMC. However, even though the parties clearly
disputed which of the pending lawsuits constituted the first -filed suit where Texas
Brine' s duplicative third -party demands should be heard, and the issue was
squarely before the trial court, no determination was made in the judgment. The
district court actually struck through all of the language in the judgment pertaining
to the identification of the first -filed suit.
Texas Brine originally filed a supervisory writ from the September 7, 2017
judgment sustaining VMC' s declinatory exception of lis pendens. This court
granted Texas Brine' s writ application for the limited purpose of remanding to the
district court with instructions to grant Texas Brine an appeal, since the September
7, 2017 judgment was determined to be a final, appealable judgment pursuant to
La. C. C. P. art. 1915( A)( 1). Florida Gas Transmission, Co., LLC v. Texas Brine
Company, LLC, et al., 2018- 0378 ( La. App. 1st Cir. 6/ 25/ 18), 2018 WL 31260973
unpublished). The district court granted Texas Brine a devolutive appeal on
August 9, 2018.
This court issued a show cause order on June 28, 2019, stating that the
September 7, 2017 judgment appeared to be ambiguous as to the specific relief
granted and was therefore non -appealable, since the district court had made no
determination as to what constituted the " first -filed set of claims and demands" as
stated in the judgment. Further, this court noted that the determinations of the
district court should be evident from the language of the judgment itself without
reference to other documents in the record. VMC and Texas Brine filed responses
to our show cause order, with Texas Brine agreeing that the judgment on appeal is
not a valid final judgment. Texas Brine requested either that the matter be
dismissed or that the matter be remanded to the district court for further
proceedings on the lis pendens issues between Texas Brine and VMC. VMC
directed this court' s attention to Crosstex Energy Services, LP, et al. v. Texas Brine
Company, LLC, et al., 2018- 1788 ( La. App. 1st Cir. 8/ 29/ 19), 2019 WL 4073384unpublished),
where Texas Brine filed an appeal challenging an identical 2017
judgment granting VMC' s lis pendens exception. Texas Brine filed an exception
of lack of appellate jurisdiction, seeking to dismiss its own appeal, which this court
granted finding that the judgment was not a final, appealable judgment. Crosstex
Energy Services, LP, 2019 WL 4073384, at * 1.
DISCUSSION
Appellate courts have a duty to examine subject matter jurisdiction sua
sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp.
v. Lafourche Realty Company, Inc., 2011- 0520 ( La. App. 1st Cir. 11/ 9/ 11), 79 So.
3d 1054, 1059, writ denied, 2012- 0360 ( La. 4/ 9/ 12), 85 So. 3d 698. Initially, we
note that this court is not bound by a writ panel' s previous action. A regular appeal
panel has the authority, and indeed the duty, to review, overrule, modify, and/or
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amend a writ panel' s decision on an issue when, after reconsidering the issue to the
extent necessary to determine whether the writ panel' s decision was correct, the
appeal panel finds that the writ panel' s decision was in error. Joseph v. Ratcliff,
2010- 1342 ( La. App. 1st Cir. 3/ 25/ 11), 63 So. 3d 220, 223. Mere doubt as to the
correctness of the prior ruling by a writ panel is not enough to change the prior
ruling; only where it is manifestly erroneous or application of the law of the case
doctrine would result in an obvious injustice should we overrule or modify the
prior ruling. Id. Additionally, the discretionary law of the case principle does not
bar us from reconsidering our prior rulings, especially when the previous decision
was clearly erroneous and would result in an inappropriate review of a non -
appealable judgment. Id. at 223- 24.
This court' s jurisdiction extends to final judgments and interlocutory
judgments as expressly provided by law. See La. C. C. P. art. 2083. A final
appealable judgment must contain decretal language and it must name the party in
favor of whom the ruling is ordered, the party against whom the ruling is ordered,
and the relief that is granted or denied. Further, a valid judgment must be precise,
definite, and certain. These determinations should be evident from the language of
the judgment without reference to other documents in the record. In the absence of
a valid final judgment, this court lacks subject matter jurisdiction. Advanced
Leveling & Concrete Solutions v. Lathan Company, Inc., 2017- 1250 ( La. App. 1 st
Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046- 47 ( en banc). In this case, it is not possible
to determine, from the language of the judgment alone, what constitutes the " first -
filed set of claims and demands," as referenced in the judgment. The " first -filed
set of claims and demands" is clearly disputed by the parties and was the key issue
that should have been decided by the district court. Accordingly, this court is
unable to determine the exact relief that is granted or denied by the judgment. We
find that the indefinite judgment is not a final, appealable judgment. Thus, we lack
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subject matter jurisdiction to consider this appeal. See Pontchartrain Natural Gas
System v. Texas Brine Company, LLC, 2018- 0419 ( La. App. 1 st 6/ 26/ 19), 280 So.
3d 792, 796, writ denied, 2019- 01125 ( La. 7/ 17/ 19), 277 So. 3d 1180; See also
Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 2018- 0435 ( La.
App 1st 6/ 26/ 19), 280 So. 3d 652, 655. Moreover, to the extent that a writ panel' s
previous ruling in this matter may have indicated otherwise, we find that we are
not bound by that unpublished writ action.
In response to this court' s rule to show cause, Texas Brine asserts that if this
court lacks appellate jurisdiction, we should await final determination of the suit
before assessing costs. We deny Texas Brine' s request. See Pontchartrain
Natural Gas System v. Texas Brine Company, LLC, 2018- 0493 ( La. App. 1st Cir.
9/ 27/ 19), 2019 WL 4727543, * 1; Crosstex Energy Services, LP, 2019 WL 4073384at * t ( denying Texas Brine' s request that we await a final determination of the
entire underlying suit before assessing costs when there was no valid, final
judgment); see also Pontchartrain Natural Gas System v. Texas Brine Company,
LLC, 2018- 0492 ( La. App. 1st 9/ 27/ 19), So. 3d at , 2019 WL 47275425 * 2;
Pontchartrain Natural Gas System, 280 So. 3d at 796; Pontchartrain Natural Gas
System, 280 So. 3d at 655 ( dismissing the appeal for lack of appellate jurisdiction
and assessing all costs of the appeal to Texas Brine).
CONCLUSION
For the stated reasons, we dismiss this appeal for lack of subject matter
jurisdiction. Additionally, because we dismiss the appeal for lack of jurisdiction,
we pretermit ruling on the motion to consolidate appeals filed by Vulcan Materials
Company. We assess all costs of this appeal to appellant/third-party plaintiff,
Texas Brine Company, LLC.
APPEAL DISMISSED; RULING ON MOTION TO CONSOLIDATE
PRETERMITTED.
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