Pontchartrain Natural Gas System, k/d/s Promix, L.L.C., and Acadian Gas Pipeline System v. Texas Brine Company, LLC

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2022 CA 1031
PONTCHARTRAIN NATURAL GAS SYSTEM, KID/ S PROMIX, L.L.C.
and
ACADIAN GAS PIPELINE SYSTEM
VERSUS
TEXAS BRINE COMPANY, LLC, et al
Judgment Rendered. MAY 0 9 2023
Appealed from the
23rd Judicial District Court
In and for the Parish of Assumption
State of Louisiana
Case No. 34,265
The Honorable Thomas J. Kliebert, Jr., Ad Hoe, Judge Presiding
Leopold Z. Sher Attorneys for Defendant/ Third-
James M. Garner Party Plaintiff/Appellant
Peter L. Hilbert, Jr. Texas Brine Company, LLC
Martha Curtis
Jeffrey D. Kessler
New Orleans, LA
Travis J. Turner
Gonzales, LA
Glen E. Mercer Attorneys for Defendants/ Appellees
Kourtney Twenhafel Zurich American Insurance Company,
New Orleans, LA Steadfast Insurance Company, and
American Guarantee and Liability
John K. Daly, pro hoc vice Insurance Company
Denver, CO
1- 11
y-
4, ipeo '
H
Martin A. Stern Attorneys for Defendant/ Appellee
Leigh Ann Schell Occidental Chemical Corporation
Raymond P. Ward
New Orleans, LA
Kathy Patrick, pro hac vice
Sam W. Cruse, pro hac vice
Laura Kissel Cassidy, pro hac vice
Caitlin Halpern, pro hac vice
Houston, TX
BEFORE; THERIOT, HOLDRIDGE, AND WOLFE, JJ.
2
THERIOT, J.
In this appeal, Texas Brine Company, LLC (" Texas Brine") challenges the
trial court' s March 25, 2021 judgment granting Zurich American Insurance
Company, Steadfast Insurance Company, and American Guarantee and Liability
Insurance Company, LLC' s ( collectively, " Zurich") motion for summary judgment
and, likewise, sustaining Zurich' s peremptory exception raising the objection of no
cause of action. The judgment dismissed with prejudice Texas Brine' s petition to
annul an appellate court judgment rendered by this court on October 11, 2018, in
docket number 2018 CA 0244, which Texas Brine maintains was not randomly
allotted as required by Louisiana law. Also, in its March 25, 2021 judgment, the
trial court denied Zurich' s request for reasonable costs and attorneys' fees, which
Zurich challenges herein. Additionally, Occidental Chemical Corporation
Oxy") 2 answered Texas Brine' s appeal, requesting this court reverse or vacate
the trial court' s overruling of its peremptory exception raising the objection of
peremption, seeking a modification of the trial court' s denial to award Oxy
reasonable costs and attorneys' fees, as well as requesting from this court
reasonable costs and attorneys' fees associated with defending Texas Brine' s
appeal.
The same issues before us in the instant appeal were recently decided by
another panel of this court in a related appeal. In Pontchartrain Natural Gas
System v. Texas Brine Company, LLC, 2022- 0990 ( La. App. 1st Cir. 3116123),
So. 3d , 2023 WL 2531173, this court affirmed in part and vacated in part a
Louisiana Code of Civil Procedure article 2004( C) provides, "[ t] he court may award reasonable
attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds."
2 Although this specific appeal addresses the district court' s granting of Zurich' s motion for
summary judgment and peremptory exception raising the objection of no cause of action,
Occidental Chemical Corporation was the subject defendant in the companion appeal, 2022 CA
0990, in which Texas Brine sought to annul another judgment from this court, all of which was
pled by Texas Brine in the same petition to annul, and which Texas Brine noticed in its singular
Petition for Devolutive Appeal.
3
similar judgment, rendered the same day, by the same trial court judge, and
originating from the same trial court docket number, granting Oxy' s motion for
summary judgment and sustaining Oxy' s peremptory exception raising the
objection of no cause of action, as well as awarding $ 5, 000.00 in reasonable costs
and attorneys' fees to Oxy, all concerning Texas Brine' s identical claim that this
court did not randomly allot, as required by Louisiana law, another judgment from
this court — 2018 CA 0241. Of note, Texas Brine challenged both of this court' s
prior judgments in 2018 CA 0241 and 2018 CA 0244 in the same, underlying
petition to annul.
As such, and after a thorough review of the record, we find no material
distinctions between the evidence and arguments asserted in this appeal and those
presented in Pontchartrain. The exact same background, issues, and assignments
of error raised by Texas Brine in this case have already been thoroughly discussed
in Pontchartrain, which we are bound to follow under the " law of the circuit
doctrine," which requires us to follow our prior decisions. See Pontchartrain
Natural Gas System v. Texas Brine Company, LLC, 2018- 0001 ( La. App. l st
Cir. 6/ 4/ 18), 253 So.3d 156, writ denied, 2018- 1124 ( La. 9/ 28/ 18), 253 So. 3d 147.
Accordingly and similarly, we conclude that Texas Brine' s allegations of " ill
practices"
on the part of this court' s random allotment of appeals are merely
conclusory. There is no showing of a deprivation of Texas Brine' s, or any other
parties', legal rights. Texas Brine failed to demonstrate how it was deprived of the
fundamental opportunity to fairly present its case to this court in the appeal with
docket number 2018 CA 0244 or how this court' s allotment system caused or was
in any way related to any adverse judgment. Texas Brine fully litigated docket
number 2018 CA 0244 up and until the Louisiana Supreme Court denied writs on
March 6, 2019. Pontchartrain Natural Gas System v. Texas Brine Company,
4
LLC, 2019- 0080 ( La. 316119), 264 So. 3d 1204. See Pontchartrain, 2023 WL
2531173 at * 4.
We issue this summary disposition in accordance with Uniform Rules of
Louisiana Courts of Appeal, Rule 2- 16. 2( A)( 2), ( 4), and ( 6), and vacate the portion
of the trial court' s March 25, 2021 judgment sustaining the peremptory exception
raising the objection of no cause of action filed by Zurich American Insurance
Company, Steadfast Insurance Company, and American Guarantee and Liability
Insurance Company, LLC as moot. We further affirm the portion of the judgment
granting the motion for summary judgment filed by Zurich American Insurance
Company, Steadfast Insurance Company, and American Guarantee and Liability
Insurance Company, LLC that dismissed Texas Brine Company, LLC' s petition to
annul this court' s October 11, 2018 judgment rendered in docket number 2015 CA
0244 and all of its claims against Zurich American Insurance Company, Steadfast
Insurance Company, and American Guarantee and Liability Insurance Company,
LLC. Furthermore, pursuant to La. Code Civ. P. art. 2004( C), we award Occidental
Chemical Corporation $ 1, 200.00 in attorney fees3 for successfully defending this
appeal. All costs of this appeal are assessed to Texas Brine Company, LLC.
VACATED IN PART; AFFIRMED IN PART; REQUEST FOR
ATTORNEY FEES GRANTED.
3 We note, in its appellee brief, Zurich requested damages for a frivolous appeal pursuant to La.
Code Civ. P. art. 2164. However, the proper procedure for an appellee to request frivolous
appeal damages is to file either an answer to the appeal or a cross appeal. See La. Code Civ. P.
art. 2133; Donaldson v. Guidry, 2021- 1569 ( La. App. 1st Cir. 7/ 8/ 22), 345 S0. 3d 433, 438, writ
denied, 2022- 01208 ( La. 1118122). As a brief constitutes neither, an appellee cannot recover
damages for taking a frivolous appeal if the damages are first requested in the appellee' s brief.
Donaldson, 345 So. 3d at 438- 39. Therefore, Zurich' s request for frivolous appeal damages is
denied.
5
PONTCHARTRAIN NATURAL GAS STATE OF LOUISIANA
SYSTEM, KID/S PROMIX, L.L.C.
and
ACADIAN GAS PIPELINE SYSTEM COURT OF APPEAL
VERSUS FIRST CIRCUIT
TEXAS BRINE COMPANY, LLC, et al 2022 CA 1031
HOLDRIDGE, J., agreeing in part and dissenting in part.
1 agree in part and dissent in part in this case. I agree with the majority' s
decision vacating the portion of the trial court' s judgment sustaining the peremptory
exception raising the objection of no cause of action as moot. I also agree with the
majority' s decision affirming that portion of the judgment granting the motion for
summary judgment and dismissing Texas Brine Company, LLC' s petition to annul
this court' s previous judgment rendered in docket number 2018 CA 0244. While I
agree with the results and reasoning of the majority opinion, I recognize that in our
civilian system, courts are not bound by prior decisions if those decisions are
contrary to the law. See Bergeron v. Richardson, 2020- 01409 ( La. 6/ 30/ 21), 320
So. 3d 1109, 1116- 17 ( Weimer, GJ., concurring).
However, I disagree with that portion of the judgment awarding Occidental
Chemical Corporation $ 1, 200 in attorney fees pursuant to La. C. C. P. art. 2004( C)
for successfully defending the appeal. Although Occidental Chemical Corporation
Occidental) filed an appellee brief and an answer in this appeal, Occidental does
not refer to the judgment that is on appeal in this matter in favor of Zurich American
Insurance Company, Steadfast Insurance Company, and American Guarantee &
Liability Insurance Company, LLC. Rather, the appellee brief and answer
specifically refer to and seek modification of the trial court' s judgment pertaining to
Occidental in Pontchartrain Natural Gas System v. Texas Brine Company,
LLC, 2022- 0990 ( La. App. 1 Cir. 3/ 16123), So. 3d , wherein this court
awarded it $ 1, 200 on appeal) Louisiana Code of Civil Procedure article 2004( C)
provides that the court may award reasonable attorney fees incurred by the prevailing
party in an action to annul judgment on the grounds of fraud or ill practices. Where
the party answering the appeal has already been awarded attorney fees in the appeal
of the judgment in its favor, it is not appropriate to award it additional attorney fees
in the appeal of a judgment in favor of another party where it admittedly filed
essentially the same brief in both appeals except for some minor editorial changes
and record citations and where the relief it seeks in its answer to the appeal pertains
to the judgment in the previous appeal. The majority gives no basis for its award of
attorney fees to Occidental pursuant to La. C. C. P. art. 2004( C), which is not the
prevailing party in this appeal. I note that Occidental in its answer to the appeal also
sought attorney fees as damages for a frivolous appeal pursuant to La. C.C. P. art.
2164, but the majority did not award attorney fees under this article. For these
reasons, I respectfully dissent from that part of the majority opinion.
1 In its answer to the appeal, Occidental stated, " The trial court' s judgment erroneously overrules
Occidental' s] peremptory exception of peremption. [ Occidental] seeks a modification of the
judgment so as to sustain Occidental' s exception ofperemption."