Susan Russo Marchand v. Texas Brine Company, LLC ( 2019 )


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  •                         STATE OF LOUISIANA
    COURT OF APPEAL
    FIRST CIRCUIT
    NUMBER 2019 CA 0052
    SUSAN RUSSO MARCHAND, ET AL
    VERSUS
    TEXAS BRINE COMPANY, LLC, ET AL
    Judgment Rendered:
    DEC 2 7 2019
    On appeal from the
    Twenty -Third Judicial District Court
    In and for the Parish of Assumption
    State of Louisiana
    Docket No. 34, 270, Div. A
    Honorable Jason Verdigets, Judge Presiding
    Leopold Z. Sher                                  Counsel for
    James M. Garner                                  Third -Party Plaintiff/Appellant
    Peter L. Hilbert, Jr.                            Texas Brine Company, LLC
    Neal J. Kling
    Jeffrey D. Kessler
    Jonathan B. Cerise
    Martha Y. Curtis
    Rebekka C. Veith
    Kevin M. McGlone
    David A. Freedman
    New Orleans, LA
    Robert Ryland Percy III
    Travis J. Turner
    Gonzales, LA
    Katie D. Bell
    Bradley C. Myers
    Troy J. Carpentier
    Baton Rouge, LA
    Dane S. Ciolino
    Metairie, LA
    James Kuhn
    Ponchatula, LA
    Christoper B. Bailey               Counsel for
    Matthew J. Randazzo, III           Third -Party Defendant/ Appellee
    Shawn A. Carter                    Browning Oil Company, Inc.,
    Will Montz                         Colorado Crude Company, and
    Joshua S. Barnhill                 LORCA Corporation
    Lafayette, LA
    Erika L. Bright
    Jeffrey L. Millis
    Dallas, TX
    Joseph L. Shea                     Counsel for
    Katherine Smith Baker              Third -Party Defendant/ Appellee
    Ashley G. Gable                    Reliance Petroleum
    Joshua A. Chevallier               Corporation
    Shreveport, LA
    Jason M. Cerise
    New Orleans, LA
    Chad J. Landry
    Metairie, LA
    Margaret G. Patton
    Baton Rouge, LA
    Charles E. Tabor                   Counsel for
    Reid A. Jones                      Third -Party Defendant/Appellee
    Frank H. Spruiell, Jr.             Sol Kirschner
    Reid A. Jones
    Seth M. Moyers
    Shreveport, LA
    BEFORE: GUIDRY, WELCH, AND THERIOT, JJ.
    2
    GUIDRY, J.
    Third -party plaintiff, Texas Brine Company, LLC ( Texas Brine), appeals a
    judgment granting the peremptory exceptions of res judicata and collateral estoppel
    filed by third -party defendants. For the following reasons, we affirm.
    FACTS AND PROCEDURAL HISTORY
    The underlying history of this case is familiar to this court as it has previously
    been before us on numerous occasions. In May of 2013, twenty plaintiffs, as owners
    of land in Assumption Parish, filed suit against Texas Brine, among others, asserting
    damages and injuries from a sinkhole caused by salt mining operations. Texas Brine
    answered the plaintiffs' petition, generally denying liability. Texas Brine also filed
    various incidental demands.
    Most relevant to this case, in 2015, Texas Brine filed amended incidental
    demands against multiple parties including the third -party defendants herein,
    Reliance      Petroleum     Corporation,     Browning       Oil   Company,       Inc.,   LORCA
    Corporation, Colorado Crude Company, and Sol Kirschner (collectively, " the oil and
    gas parties").   In the first matters to proceed to trial, the Pipeline cases, I the oil and
    gas parties filed motions for partial summary judgment and involuntary dismissal as
    to all of Texas Brine' s claims against them.       These motions were granted by the trial
    court, in favor of the oil and gas parties, with several rulings affirmed by this court
    on appeal.'
    Thereafter, with nearly identical incidental demands filed by Texas Brine
    against them in the matter herein, the oil and gas parties filed peremptory exceptions
    1 The Pipeline cases were several of many arising from the 2012 sinkhole. The Pipeline cases
    include Crosstex Energy Services, LP, et al. v. Texas Brine Co., LLC, et al., No. 343202, 23rd
    Judicial District Court, Assumption Parish; Pontchartrain Natural Gas System, et al. v. Texas
    Brine Co., LLC, et al., No. 34265, 23rd Judicial District Court, Assumption Parish; and Florida
    Gas Transmission Co., LLC v. Texas Brine Co., LLC, et al., No. 34316, 23rd Judicial District
    Court, Assumption Parish.
    2Multiple appeals were filed by Texas Brine pertaining to the summary judgment and involuntary
    dismissals, some of which are still pending before this court. The trial court has been affirmed by
    this court in the following cases: Crosstex Energy Services, LP v. Texas Brine Company, LLC,
    3
    based on the doctrines of res judicata and collateral estoppel. The trial court
    sustained those peremptory exceptions in a judgment signed on July 16, 2018. Now,
    Texas Brine appeals, claiming that the trial court' s res judicata judgment " will be in
    error,"    to the extent that any summary judgment or involuntary dismissal in a
    Pipeline case is overruled or modified on appeal, and that the trial court erred in
    prematurely dismissing, with prejudice, Texas Brine' s claims against the oil and gas
    parties.     Texas Brine also filed a motion to stay the instant appeal. 3
    DISCUSSION
    Texas Brine argues that the trial court' s res judicata judgment was in error
    and that the court prematurely dismissed, with prejudice, Texas Brine' s claims
    against the oil and gas parties.       We first address Texas Brine' s assertion of error
    regarding the " premature dismissal" of its claims. In doing so, we recognize the
    general rule, codified in Uniform Rules -Courts of Appeal, Rule 1- 3, which provides:
    t] he Courts of Appeal will review only issues which were submitted to the trial
    court ...,    unless the interest ofjustice clearly requires otherwise."       We note that the
    issue of prematurity was never submitted to the trial court by Texas Brine.
    Accordingly, we decline to consider it on appeal.
    18- 0900 (La. App. 1st Cir. 8/ 5/ 19), 
    2019 WL 3561759
    ; Pontchartrain Natural Gas System v. Texas
    Brine Company, LLC, 18- 0631 ( La. App. 1st Cir. 7/ 3/ 19), 
    281 So. 3d 1
    , writ denied, 19- 
    01423 La. 11
    / 12/ 19), ^   So. 3d ,   
    2019 WL 6108130
    ; Florida Gas Transmission Company, LLC v.
    Texas Brine Company, LLC, 18- 0842 ( La. App. 1 st Cir. 8/ 5/ 19), 
    2019 WL 3561807
    ; Pontchartrain
    Natural Gas System v. Texas Brine Company, LLC, 18- 0606 ( La. App. 1st Cir. 12/ 21/ 18), 
    268 So. 3d 1058
    , writ denied, 19- 0526 ( La. 6/ 17/ 19), 
    273 So. 3d 1210
    ; Crosstex Energy Services, LP v.
    Texas Brine Company LLC, 18- 1213 ( La. App. 1st Cir. 7/ 11/ 19), 
    2019 WL 3049762
    , writ denied,
    19- 01126 (La. 7/ 17/ 19), 
    277 So. 3d 1180
    ; Crosstex Energy Services, LP v. Texas Brine Company,
    LLC, 18- 0749 ( La. App. 1st Cir. 2/ 27/ 19), 
    2019 WL 969564
    ; and Florida Gas Transmission
    Company, LLC v. Texas Brine Company, LLC, 18- 0549 ( La. App. 1st Cir. 7/ 1/ 19), 
    2019 WL 2723560
    , writ denied, 19- 01227 ( La. 10/ 15/ 19), 
    280 So. 3d 611
    .
    3O March 22, 2019, Texas Brine filed its motion to stay the instant appeal, arguing that a reversal
    of the summary judgment/involuntary dismissal on appeal would render the trial court' s July 16,
    2018 res judicata judgment erroneous. The motion to stay was referred to this panel to which the
    appeal is assigned.
    11
    In addressing the issue of res judicata, we note the following: Louisiana
    Revised Statutes 13: 4231 embraces the broad usage of the phrase " res judicata" to
    include both claim preclusion ( res judicata) and issue preclusion ( collateral
    estoppel).
    Henkelmann v. Whiskey Island Preserve, LLC, 13- 0180, p. 6 ( La. App.
    1st Cir. 5/ 15/ 14), 
    145 So. 3d 465
    , 470. The statute provides:
    Except as otherwise provided by law, a valid and final judgment is
    conclusive between the same parties, except on appeal or other direct
    review, to the following extent:
    1)    If the judgment is in favor of the plaintiff, all causes of action
    existing at the time of final judgment arising out of the transaction or
    occurrence that is the subject matter of the litigation are extinguished
    and merged in the judgment.
    2) If the judgment is in favor of the defendant, all causes of action
    existing at the time of final judgment arising out of the transaction or
    occurrence that is the subject matter of the litigation are extinguished
    and the judgment bars a subsequent action on those causes of action.
    3)    A judgment in favor of either the plaintiff or the defendant is
    conclusive, in any subsequent action between them, with respect to any
    issue actually litigated and determined if its determination was essential
    to that judgment.
    La. R.S. 13: 4231.
    The Louisiana Supreme Court has stated that " the chief inquiry is whether the
    second action asserts a cause of action which arises out of the same transaction or
    occurrence that was the subject matter of the first action." Burguieres v. Pollingue,
    02- 1385, p. 7 ( La. 2/ 25/ 03), 
    843 So. 2d 1049
    , 1053. The Court has also emphasized
    that all of the following must be fulfilled to preclude a second action under res
    judicata:
    1) the judgment is valid; ( 2) the judgment is final; ( 3) the parties are
    the same; ( 4) the cause or causes of action asserted in the second suit
    existed at the time of final judgment in the first litigation; and ( 5) the
    cause or causes of action asserted in the second suit arose out of the
    transaction or occurrence that was the subject matter of the first
    litigation.
    5
    Bur uieres, 02- 1385 at p. 8, 843 So. 2d at 1053.
    In this Court' s view, all of the essential elements of res judicata are present
    in this matter. The judgments in the first suits are final and valid,' and the parties in
    the first and second suits remain the same. Thus, the first three elements are met. In
    addition, with nearly identical incidental demands filed in the first and second suits,
    it is clear from the record that the causes of action asserted in the second suit existed
    at the time of the final judgment in the first litigation— the fourth element, and arose
    out of the same occurrence that was the subject of the first litigation— the fifth
    element.
    The plaintiff' s reliance on a " reversal"      by this court of the trial court' s
    judgments, which would in turn make the res judicata judgment an error, is wholly
    misplaced.    A final judgment is conclusive between the parties except on direct
    review.    La. R.S. 13: 4231;   see also Tolis v. Board of Sup' rs of Louisiana State
    University, 95- 1529, p.      2 ( La.   10/ 16/ 95),   
    660 So. 2d 1206
     (   per   curiam).
    Furthermore, a final judgment becomes res judicata and conclusive between the
    parties when it was rendered, although subject to modification by a higher court on
    direct review. Tolis, 95- 1529 at p. 3, 660 So. 2d at 1207. In this case, the trial court
    found that the statutory requirements of res judicata were met, and we agree.              We
    find no merit in the plaintiff's assertion that the trial court erred in rendering its
    judgment. Finally, we deny Texas Brine' s motion to stay this appeal. We find there
    is no valid reason to delay this matter.
    CONCLUSION
    For the above and foregoing reasons, we affirm the trial court' s July 16, 2018
    judgment, sustaining the exceptions of res judicata and collateral estoppel filed by
    the   third -party   defendants,   Reliance    Petroleum     Corporation,    Browning - Oil
    See La. R. S. 13: 4231, COMMENTS —1990 ( d).
    rel
    Company, Inc., LORCA Corporation, Colorado Crude Company, and Sol Kirschner,
    and dismissing, with prejudice, the third -party demands of the plaintiff, Texas Brine
    Company, LLC. We also deny the motion to stay this appeal. All costs ofthis appeal
    are assessed to Plaintiff A
    - ppellant Texas Brine Company, LLC.
    MOTION TO STAY DENIED; JUDGMENT AFFIRMED.
    7
    

Document Info

Docket Number: 2019CA0052

Filed Date: 12/27/2019

Precedential Status: Precedential

Modified Date: 10/22/2024