Florida Gas Transmission Company, LLC v. Texas Brine Company, LLC

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 CA 0684
2022 CW 0960

FLORIDA GAS TRANSMISSION COMPANY, LLC

VERSUS

TEXAS BRINE COMPANY, LLC, ET AL.

Judgment Rendered: MAR 0 8 2023

Appealed from the
23rd Judicial District Court
In and for the Parish of Assumption
State of Louisiana
Docket Number 34,316

The Honorable Thomas J. Kliebert, Jr., Ad Hoe Judge Presiding

Leopold Z. Sher Attorneys for Appellant/Relator
James M. Garner Texas Brine Company, LLC
Peter L. Hilbert, Jr.
Darnell Bludworth
New Orleans, Louisiana

Travis J. Turner
Gonzales, Louisiana

Ulysses Gene Thibodeaux
Lake Charles, Louisiana

Roy C. Cheatwood Attorneys for Appellee/ Respondent
Kent A. Lambert Legacy Vulcan, LLC
Adam B. Zuckerman
Leopoldo J. Yanez
Colleen C. Jarrott
Matthew C. Juneau
Lauren Brink Adams
New Orleans, Louisiana

BEFORE: WELCH, WOLFE, and GREENE, JJ.

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PER CURIAM:

This is one of many appeals arising from the August 2012 sinkhole that

appeared near Bayou Coyne in Assumption Parish. Here, Texas Brine Company,

LLC, challenges the district court' s January 6, 2022 partial summary judgment that

dismissed with prejudice its fraud and concealment/ omission claims against

Legacy Vulcan, LLC, due to issue preclusion.

In Pontchartrain Natural Gas System v. Texas Brine Company, LLC,

2022- 0594 ( La. App. 1 Cir. 1/ 20/23), So. 3d ( 2023 WL 334027), another

panel of this court considered and decided the same issues raised in this appeal,

and affirmed an identical partial summary judgment rendered by the same district

court judge, on the same date, concerning the same parties, and dismissing the

same claims. After careful review, we find no material distinctions between the

evidence and arguments raised in this appeal and those presented in

Pontchartrain, including whether issue preclusion under res judicata applies

when certain contractual claims have not yet been adjudicated, whether Legacy

Vulcan proved all of the elements of issue preclusion, and whether exceptional

circumstances would justify relief from the effects of res judicata. Under the law

of the circuit doctrine, we are bound to follow Pontchartrain and affirm the

January 2, 2022 partial summary judgment. See Crosstex Energy Services, LP v.

Texas Brine Company, LLC, 2022- 0447 ( La. App. 1 Cir. 1114122), So. 3d

2022 WL 16705744, * 2), writs denied, 2022- 01768 ( La. 2/ 7/ 23),

So. 3d ( 2023 WL 1793824) and 2022- 01769 ( La. 2/ 7/ 23), So. 3d ( 2023

WL 1793449); Labarre v. Occidental Chemical Company, 2019-0624 ( La. App.

1 Cir. 2/ 19/ 20), 2020 WL 813269, * 1 ( unpublished).

Texas Brine also filed a writ application with this court ( 2022 CW 0960) that

was referred to this panel for review, seeking review of the district court' s July 19,

2022 denial of its motion for partial summary judgment regarding Legacy Vulcan' s

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liability as an intentional tortfeasor for Texas Brine' s damages. As in

Pontchartrain, we decline to exercise our supervisory jurisdiction and deny the

writ. See Pontchartrain, So. 3d at n. 1.

This summary disposition is issued in accordance with Uniform Rules -

Courts of Appeal, Rule 2- 16. 2( A)(2) and ( 6). All costs of this appeal are assessed

to Texas Brine Company, LLC.

JANUARY 6, 2022 JUDGMENT AFFIRMED; WRIT DENIED,

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 STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 CA 0684
2022 CW 0960

FLORIDA GAS TRANSMISSION COMPANY, LLC

VERSUS

TEXAS BRINE COMPANY, LLC, ET AL.

WOLFE, J., concurring.

4-
W
Bound by the law of the circuit doctrine to follow this courts decision in

Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 2022- 0594

La. App. 1 Cir. 1120123), So. 3d ( 2023 WL 334027), I am constrained to

concur in the result reached by the majority. I write separately to express that I

respectfully disagree with the legal analysis and determination in Pontchartrain that

res judicata bars litigation of Texas Brine' s contractual fraud claims against Legacy

Vulcan.

Texas Brine concedes that Legacy Vulcan' s tortious fraud and withholding of

information was addressed during Phase One; however, I find that those claims were

addressed only to the extent that they affected the tortious allocation of fault between

the parties, which was the stated scope of Phase One—" determining what caused

the sinkhole to form and which parties, if any, were at fault under any theory of law

for causing the formation of the sinkhole." Those claims were not essential to the

determination of the Phase One liability judgment and were considered only in

relation to an affirmative defense. Thus, I would find that Texas Brine' s claims

against Legacy Vulcan for contractual fraud and intentional omission/ concealment

regarding inducement into and performance of various contracts and operating

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agreements were not conclusively adjudicated by the district court during the Phase

One liability trial. At the very least, I would find that there is some doubt as to

whether or not these contractual fraud claims were conclusively adjudicated during

Phase One, which precludes summary judgment.

With regard to Texas Brine' s writ application that was referred to this panel

for review in conjunction with this appeal, I find that the district court was correct

in its denial of Texas Brine' s motion for partial summary judgment. Based on three

isolated references to Legacy Vulcan' s " intentional" withholding of various emails,

documents, and reports that appear in this court' s Phase One liability opinion, Texas

Brine claims Legacy Vulcan was adjudicated an intentional tortfeasor. See

Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 2018- 1249

La. App. 1st Cir. 12/ 30/20), 317 So. 3d 715, writs denied, 2021- 00382, 2021- 00386

La. 6/ 8/ 21), 317 So. 3d 323. Thus, Texas Brine moved for summary judgment,

arguing that Legacy Vulcan' s " intentional" actions preclude application of the

comparative fault principles set forth in La. Civ. Code art. 2323 and that Texas Brine

is entitled to judgment finding Legacy Vulcan responsible for 100% of Texas Brine' s

damages.

Intent" refers to the consequences of an act rather than to the act itself,

meaning that a person ( 1) consciously desires the physical result of his act, whatever

the likelihood of that result happening from his conduct; or (2) knows that result is

substantially certain to follow from his conduct, whatever his desire may be as to

that result. See Bazley v. Tortorich, 397 So.2d 475, 481 ( La. 1981). While in the

Phase One liability opinion this court referenced Legacy Vulcan' s withholding of

certain documentation and omission of email paragraphs as " intentional," this court

did not adjudicate Legacy Vulcan an intentional tortfeasor as Texas Brine suggests.

This court made no finding that Legacy Vulcan consciously desired the formation

of the sinkhole or knew to a substantial certainty that the sinkhole would occur.

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Rather, this court affirmed the district court' s allocation of 15% comparative fault

to Legacy Vulcan, which establishes the fallacy of Texas Brine' s current argument.

Texas Brine is not entitled to summary judgment holding Legacy Vulcan liable as

an intentional tortfeasor for Texas Brine' s damages; therefore, I believe the district

court' s July 19, 2022 ruling was correct.

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