STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT DOCKET NUMBER 2022 CA 0738 PONTCHARTRAIN NATURAL GAS SYSTEM, K/ D/ S PROMIX, L.L.C.,



### AND ACADIAN GAS PIPELINE SYSTEM VERSUS TEXAS BRINE COMPANY, LLC

Judgment Rendered: 

# J":

On Appeal from the 23rd Judicial District Court, Division 5 Assumption Parish, Louisiana Docket Number 34,265 

### DEC 2 9 2022

Honorable Thomas J. Kliebert, Jr., 

### Presiding Ad HocJudge

James M. Garner Leopold Z. Sher Peter L. Hilbert, Jr. Christopher T. Chocheles New Orleans, Louisiana Travis J. Turner Gonzales, Louisiana Ulysses Gene Thibodeaux Lake Charles, Louisiana Roy C. Cheatwood Kent A. Lambert Adam B. Zuckerman Colleen C. Jarrott Matthew C. Juneau Leopoldo J. Yanez Lauren Brink Adams New Orleans, Louisiana Attorneys for Appellant 

### Texas BrineCompany, LLC

Attorneys for Appellee 

### LegacyVulcan, LLC

BEFORE: MCDONALD, WELCH, and HOLDRIDGE, 33.

concuvs 

# w1 ras, sMcDONALD, J.



### This dispute is one of many arising out of the August 3, 2012 sinkhole that appeared near Bayou Corne in Assumption Parish, Louisiana. In this appeal, Texas 

### Brine Company, LLC challenges a partial summaryjudgment dismissing its contractual 

### claims against Legacy Vulcan, LLCi under an Amended Operating Agreement between the parties. After review, we dismiss the appeal. FACTUAL AND PROCEDURAL BACKGROUND 

### In brief,the relevant history between Texas Brine and Legacy Vulcan dates back to 1975, when Texas Brine, by way of a " Salt Lease," secured the right to produce salt 

### from a 40 -

acre tract of land in Assumption Parish, commonly referenced by the parties

as the " North 40." 

### Within a year of obtaining this right, Texas Brine entered into a 

### series of interdependent contractswith LegacyVulcan, including an "Assignment of Salt Lease" ( Assignment of Salt Lease), under which Texas Brine purportedly assigned all of 

### its rights,title, and interest as lessee in and underthe Salt Lease to LegacyVulcan, and 

### Legacy Vulcan assumed all obligations ofTexas Brine as lessee in and under the Salt Lease; a " Construction Contract and Facilities Lease" ( Facilities Lease), under which Texas Brine was to site, drill, and construct certain wells, related facilities, and a 

### pipeline on the North 40 and lease certain property to Legacy Vulcan; and, an Operating and Supply Agreement" ( Operating Agreement), under which Texas Brine would operate facilities it constructed on the North 40 in order to produce and deliver a 

### certain quantity and quality of brine to be used by Legacy Vulcan in its chloralkali business at its facility in Geismar, Louisiana. The Operating Agreementfurther provided that Texas Brine maintain, repair, and at all times, keep the facilities leased by it to 

### Legacy Vulcan in good and safe operating condition. In turn, 

### Legacy Vulcan was 

### obligated to pay Texas Brine for its services. Each of the above agreements provided 

### certain otherspecific rights to and obligations owed by the parties. 

### Around 2000, Texas Brine and Legacy Vulcan entered into the " First Amendment to the Salt Lease," " Amendment to Construction Contract and Facilities Lease" 1 Legacy Vulcan, LLC was previously known as Vulcan Materials Company; we will reference it as Legacy Vulcan in this opinion.Amended Facilities Lease), and " Amended and 

### Restated Operating and Supply

Agreement" (Amended Operating Agreement), each contract dependent upon the other 

### contracts, forthe purpose of continuing the brine mining and exploration on the North 40. 

### The general principles underlying the Amended Operating Agreement remained the

same - Texas Brine would operate on the North 40 to produce and deliver certain 

### quantities and qualities of brine to Legacy Vulcan. Texas Brine further obligated itself 

### to maintain, repair, and at all times, keep these facilities in good and safe operating 

### condition, and complywith, perform, and fulfill all obligations of Legacy Vulcan toTexas Brine under the Amended Facilities Lease between the parties, with respect to the maintenance, operation, and preservation of the leased premises. 

### Legacy Vulcan, in 

### turn, obligated itself to pay forTexas Brine's services. Changes or additions made to 

### the Amended Operating Agreement included giving Legacy Vulcan the right to double the amount of salt Texas Brine produced and delivered to Legacy Vulcan, as well as 

### Texas Brine separately and again obligating itself to ensure that Legacy Vulcan was compliant with its obligations under the Amended Facilities Lease. Pertinent to this 

### appeal, the Amended Operating Agreement also contained an indemnification clause, which provided, in part:

Texas [ Brine] and [ Legacy] 

### Vulcan shall each pay one-half of all losses and all claims, demands, payments, suits, actions, recoveries, and judgments ... 

### of every nature and description, brought, recovered or 

### arising out ofthejoint and concurring negligence ofthe parties. Following the sinkhole's emergence, multiple plaintiffs filed numerous lawsuits against Texas Brine, all of whom suffered damages due to the sinkhole. Texas Brine, in 

### turn, asserted numerous third parry demands against Legacy Vulcan, including breach

of contract claims. 

### Specifically, regarding the Amended Operating Agreement, Texas Brine asserted that Legacy Vulcan failed to perform this contract in good faith. In its Third Amended Incidental Demands, Texas Brine alleged that the Amended Operating Agreement contained an indemnification clause, and therefore, to the extent that the 

### acts and omissions of Legacy Vulcan contributed to the formation of the sinkhole, LegacyVulcan was obligated to indemnifyTexas Brine.

3

### The Phase 1 liability trial was held in September and October 2017, for the



### purpose of determining what caused the sinkhole to form and which parties were at 

### fault under any theory of law for causing the formation of the sinkhole. See Pontchartrain, 317 So.3d at 724. The trial court found both Texas Brine and Legacy Vulcan at fault. This court affirmed thejudgment on appeal, finding that Legacy Vulcan failed to act as a prudent mineral lessee, and Texas Brine failed to prudently operate on the North 40. Pontchartrain Natural GasSystem v. Texas Brine Company,LLC,18- 1249 La. App. 1 Cir. 12/30/20), 317 So.3d 715, 757-58, writs denied, 21-00382, 21-00386 La. 6/8/21), 317 So.3d 323. Thereafter, the parties began the next phase of this litigation, which 

### encompassed all remaining incidental demands and damage/quantum issues, but not including insurance issues or attorney's fees. To that end, 

### Legacy Vulcan filed numerous partial motionsfor summaryjudgment asserting various arguments regarding 

### Texas Brine's contractual claims against Legacy Vulcan. One such motion was Legacy 

### Vulcan's motion for partial summary judgment seeking to dismiss Texas Brine's claims under the Amended Operating Agreement. First, 

### Legacy Vulcan argued that Texas 

### Brine could not prove Legacy Vulcan breached the Amended Operating Agreement. 

### Alternatively, Legacy Vulcan argued that, because Texas Brine breached the Amended Operating Agreement by failing to act as a prudent operator, citing Pontchartrain, 317 So.3d at 758-59, it was barred, under Louisiana Civil Code article 1993, from 

### demanding performance from LegacyVulcan underthe Amended Operating Agreement. Texas Brine opposed the motion, asserting numerous arguments, including: 

### Legacy Vulcan did breach the Amended Operating Agreement by its negligence in 

### thinning the walls ofthe salt cavern, citing Pontchartrain,317 So.3d at 756-57; Legacy Vulcan breached its duty to perform the Amended Operating Agreement in good faith; La. C.C. art. 1993 was inapplicable; and, the Amended Operating Agreement's indemnification clause was an independent clause that could survive, 

### despite any breach ofthe Amended Operating Agreement. 

### The trial court held a hearing on this motion, along with several others, on December 16, 2021. 

### Following the parties' arguments and submission of evidence, the 4trial court took the matter under advisement. On January 18, 2022, the trial court



### signed ajudgment,stating:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that 

### Legacy] Vulcan's Motion for Partial SummaryJudgment Dismissing Texas Brine's Claims Under the Amended Operating Agreement is GRANTED, and Texas Brine's claims against [ Legacy] Vulcan under the Amended 

### Operating Agreementare DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Judgment is designated as a final judgment in accordance with Louisiana Civil Code Article 1915, as the Court finds that there is no just 

### reason fordelay. ASSIGNMENTS OF ERROR Texas Brine appeals from the adversejudgment, contending the trial court erred 

### in essentially rewriting the Amended Operating Agreement by disregarding the parties' contractual indemnity provision that allocated tort liability in the event of joint and concurring negligence. Texas Brine further contends the trial court erred in granting 

### summary judgment, because genuine issues of material fact exist regarding whether Legacy Vulcan agreed to reimburse Texas Brine under the Amended Operating Agreement for Texas Brine's costs and expenses incurred in connection with Texas 

### Brine'soperation ofthe OxyGeismar No. 3well.

APPEALABILITY OF PARTIAL SUMMARY 3UDGMENT 

### Appellate courts have a duty to examine subject matterjurisdiction sua sponte, even when the parties do not raise the issue. SeeAdvanced Leveling & Concrete Solutions v Lathan Company, Inc., 17- 1250 ( La. App. 1 Cir. 12/20/ 18), 268 So.3d 1044, 1046 ( en Banc). This court's appellate jurisdiction extends only to " final judgments." See La. C.C.P. art. 2083(A). 

### A trial court may render a partial summary judgment dispositive of a particular 

### issue, theory of recovery, cause of action, or defense, in favor or one or more parties, even though the grant of summaryjudgment does not dispose ofthe entire case as to that party or parties. La. C.C. P. art. 966(E); Elee v. White, 19- 1633 ( La. App. 1 Cir. 7J24J20), So.3d ,, 2020 WL 4251974, at * 2, writ denied, 20-01048 ( La. 11/ 10320), 303 So.3d 1038. 

### A partial summary judgment rendered under La. C.C.P. 

### art. 966(E) may be immediately appealed during ongoing litigation only ifthe trial court
5has properly designated it as a final judgment. See La. C.C.P. art. 1915( 6)( 1).



### However, this court's jurisdiction is not determined by a trial court's certification of a 

### partial summaryjudgment as final under La. C.C.P. art. 1915(6). Hernandez v. Excel Contractors, Inc., 18- 1091 ( 

### La. App. 1 Or. 3/ 13/ 19), 275 So.3d 278, 285. If the trial court gives no reasons for the certification, but some justification is apparent from the record, the appellate court should make a de novo determination of whether the

certification was proper. R.]. Messinger, Inc. v. Rosenblum, 04-1664 ( La. 3/2/05), 894 So.2d 1113, 1122; 

### Asay v. Safeco Ins. Co. of Oregon, 20-0852 ( La. App. 1 Cir. 4/16/21), 323 So.3d 395, 398. 

### Under Messinger, the following list of non-exclusive 

### factors are to be considered in determining whether a partial judgment should be certified as final: ( 1) 

### the relationship between the adjudicated and unadjudicated claims; ( 

### 2) the possibility that the need for review might or might not be mooted by future developments in the trial court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; and ( 4) miscellaneous factors 

### such as delay, economic and solvency considerations, shortening the time of trial, 

### frivolity of competing claims, expense, and the like. Messinger, 894 So.2d at 1122; 

### Asay,323 So.3d at 399. 

### f=urther, in determining whether a partial judgment is final for purposes of an immediate appeal, a court must always keep in mind the historic policy against piecemeal appeals. Messinger,894 So.2d at 1122; Crown Oilfield Services, Inc. 

### v La. Oilfield ContractorsAssn Ins Fund, 13-0394 (La. App. 1 Cir. 2/19/14), 2014 WL 3533482, at *3 (unpublished). 

### Applying these precepts on de novo review, we conclude the January 18, 2022 partial summary judgment does not meet the requirements of an appealable final judgment under La. C.C. P. art. 1915( B). 

### Any decision by this court on the limited claims at issue on appeal, 

### i. e.,Texas Brine's breach of the Amended Operating Agreement claims against Legacy Vulcan, without consideration of the remaining interdependent contracts and claims thereupon, would merely result in inefficient, 

### piecemeal, and possibly conflicting resolution of only a minor part ofthe parties' related

contract claims. See La. C.C.P. art. 2053 (" A doubtful provision [ in a contract] must be interpreted in light of the nature of the contract, equity, usages, the conduct of the 6parties before and after the formation of the contract, and ofother contracts ofa like

nature between the same parties ") (Emphasis added.) This court is aware that the parties have chosen this particular method of litigation to dispose of their remaining claims, 

### and the trial court is attempting to proceed in this case as efficiently as possible at thisjuncture. However, this court does 

### not believe that interpreting the parties' interrelated contracts in a disjointed manner, after their interdependence has been established, is efficient or equitable, despite the parties' contentions. See Pontchartrain Natural Gas System, 317 So.3d at 725-26; cf. 

### Florida Gas Transmission Company, LLC v. Texas Brine Company, LLC,21- 1267, 22- 0004 (La. App. 1 Cir. 8/3/22), 348 So.3d 93 (addressing howthe sole issue of confusion affected four interdependent contracts). 

### Accordingly, having found the January 18, 2022 judgment does not meet the requirements of a final appealable judgment under Messinger,we lack subject matter jurisdiction herein and dismiss the appeal. CONCLUSION For the above reasons, we dismiss this appeal and remand this matter to the trial court for further proceedings consistent with this opinion. We assess appeal costs 

### equally between Texas Brine Company, LLC and Legacy Vulcan, LLC. APPEAL DISMISSED; CASE REMANDEW

2 This court also: ( 1) grants Legacy Vulcan's motion for oral argument; and, ( 2) grants Texas Brine's motion to withdraw James E. Kuhn as its counsel of record. 7PONTCHARTRAIN NATURAL

GAS SYSTEM, K/D/S PROMIX, L.L.C., AND ACADIAN GAS PIPELINE SYSTEM VERSUS TEXAS BRINE COMPANY, LLC

HOLDRIDGE, J., eoncurs. STATE OF LOUISIANA COURT OF APPEAL

FIRST CIRCUIT NO. 2022 CA 0738



### I respectfullyconcurwiththe report.I furtherwritetoemphasizethatthe basis ofthe current appeal arises out ofan August2012 sinkhole in Assumption Parish. A 

## largenumberofwritsandappealshavebeenfiledwiththiscourtmanytimesarguing thattheprocedureusedbythetrial courtandagreed uponbythepartieswasthemost cost-efficient and expedient method ofdisposing ofthe many claims and lawsuits that are based on the 2012 sinkhole. Overten years have passed since the sinkhole occurred. It is clearthat the parties and the trial court were not correct.This matter 

### hasevolvedintoalengthyandtime-consuminglitigation inwhich millionsofdollars oflitigation expenses have been expended, as well as countless hours ofjudicial time and effort, in both the trial and appellate courts. The Louisiana Supreme Court case R.J. Messinger, Inc. v. Rosenblum, 2004- 1664 ( La. 312105), 894 So.2d 1113, 1122, would allowthis court to enforcethe policy against multiple appeals and piecemeal litigation that have been the hallmark of the 2012 Assumption Parish sinkhole litigation. It also would ensure thatthis court,as well as the trial court,would operate 

### under the principle ofsoundjudicial administration to promotejudicial efficiency 

### andeconomy, neitherofwhichhavebeenpresent inthis litigation.