Cibilic v. Cox Operating, L.L.C.

249 So. 3d 323
CourtLouisiana Court of Appeal
DecidedJune 6, 2018
DocketNO. 2017–CA–0813
StatusPublished

This text of 249 So. 3d 323 (Cibilic v. Cox Operating, L.L.C.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cibilic v. Cox Operating, L.L.C., 249 So. 3d 323 (La. Ct. App. 2018).

Opinion

JAMES F. MCKAY III, CHIEF JUDGE

In this appeal, involving alleged damage to oyster leases, the defendant, Cox Operating, LLC, appeals the trial court's judgment finding it liable for damages to oyster leases held by the plaintiffs, Pero and Mary Ann Cibilic, and awarding the plaintiffs' damages. For the reasons that follow, we affirm the trial court's judgment as amended.

FACTS AND PROCEDURAL HISTORY

Pero and Mary Ann Cibilic hold oyster leases located in Lake Eloi in St. Bernard Parish. Specifically, Mr. Cibilic owns oyster lease 33311-08 and Mrs. Cibilic owns oyster lease 33935-09. These leases are located in about six to ten feet of water and their bottoms consist mainly of productive oyster reef.

In 2011, Mr. and Mrs. Cibilic made a significant investment to purchase, transport, and spread hundreds of tons of cultch (limestone or concrete forming the substrate for oyster cultivation) onto their leases. Mr. and Mrs. Cibilic made this investment because of the scarcity of oysters after the BP oil spill and the increase of oyster prices by double or even triple of what they had been in the past. By early 2012, Mr. and Mrs. Cibilic had a healthy crop of oysters on their leases.

In May of 2012, Cox began a project to re-enter one of its old wells located adjacent to the Cibilic's oyster leases. This well, known as Cox well number 13, had been plugged and abandoned. The well was located in nine to ten feet of water with a bottom of fine sediment. Re-entry required Cox to tow a 205-by-50-foot barge, topped by a 142-foot-tall drilling derrick, to the well site using several tugboats. The rig remained at the well site until June 27, 2012, and there was daily vessel traffic to the rig. Cox gave no advance notice of the re-entry project to any oyster leaseholders in the vicinity of the project.

In order to access the well, vessels had to approach the well from the south and cross directly over Mrs. Cibilic's lease. The route required a sharp right-handed turn, just east of Mr. Cibilic's lease. The turn required vessels to power down and back up, with their propellers (props) directing prop wash towards Mr. Cibilic lease and causing sedimentation on the leases, damaging the oyster beds.

Mr. and Mrs. Cibilic filed suit against Cox, claiming that Cox damaged their oyster *327leases and oysters while Cox was working on the aforementioned re-entry project on well number 13. At trial, Mr. and Mrs. Cibilic presented the witness testimony of Mr. Cibilic, Nikola Vekic (a neighboring oyster leaseholder), and Farrell Schexnayder (a Cox tugboat contractor). They all testified that they observed Cox vessels engaging in propeller washing which displaced the sediment on the water bottoms. The plaintiffs' expert witness, oyster biologist, Dr. Ed Cake, also testified regarding damages and causation.

Cox did not present any witnesses who were present in the field during the project. Its witnesses consisted of its president and chief operating officer Rodney Dykes, its permitting agent Kasey Hebert, and Jakov Jurisic (whose wife owns the oyster lease where Cox's well is located). The defendant also called Gabe Johnson, an oyster biologist, as an expert witness.

Following a three-day bench trial, the trial court issued a judgment in favor of Mr. and Mrs. Cibilic along with reasons for judgment. The trial court held that Cox negligently damaged the plaintiffs' leases and buried their oysters. The court entered judgment in favor of Mr. and Mrs. Cibilic for $5,140,759.70 plus interest and costs. It is from this judgment that Cox now appeals.

DISCUSSION

On appeal, Cox raises several assignments of error, which can be summarized as follows: 1) whether plaintiffs met the preponderance burden of proof as to causation; 2) whether the district court applied the correct law to plaintiffs' claims; 3) whether Cox's alleged lack of notice/lack of precautions was a breach of duty under negligence principles based on the objective evidence; 4) whether the district court abused its discretion in refusing to exclude Dr. Cake as an expert; and 5) whether the district court abused its discretion as to quantum.

"A court of appeal may not set aside a trial court's findings of fact in the absence of manifest error or unless they are clearly wrong." Allerton v. Broussard, 2010-2071, p. 3 (La. 12/10/10), 50 So.3d 145, 146-47. "[I]n order to reverse a trial court's determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous." Id.

In the instant case, the trial court found that "Cox and the support vessels it contracted disturbed the sediments at the bottom of Lake Eloi or along the access route as described by several eyewitnesses." This finding is supported by the testimony of: Mr. Cibilic, who observed Cox vessels prop washing and stirring sediments near his lease; Mr. Vekic, who also observed Cox vessels prop washing near his own lease; Mr. Schexnayder, who testified that he regularly prop washed to navigate Cox's access route, and he also saw other tugs causing sedimentation; and Mr. and Mrs. Jurisic, who own the lease where the well is located and who also sued Cox for damage caused by wheel washing during the project. Sonar data from Cox's expert also showed that Cox's vessels scarred the bottom. The trial court noted that Cox "provided no eyewitnesses to contradict the testimony of eyewitnesses called by plaintiffs and this Court finds these witnesses to be very credible, especially in light of their varied backgrounds and personal experiences." Thus, it appears to this Court that the trial court's finding that Cox disturbed/damaged the water bottoms on the plaintiffs' leases was reasonable.

*328The trial court was also presented with evidence of the widespread oyster mortality on the leases of Mr. and Mrs. Cibilic following the project. Dr. Cake's sampling found high mortality after the project, and his methods and findings were not disputed by Cox's expert. In fact, Cox's expert also found "notably high" (62%) mortality in the area three months after the project. Cox's expert also conceded that his "qualitative assessment" found 1-4 inches of soft sediment on top of oyster reefs. Additionally, OLDEB1 -approved poling data found 49.4 acres of buried oyster reef on the leases. Evidence was also presented which negated that any of the damage could have been caused by Hurricane Issac or some other cause.

"Where the testimony of experts differs, the trier of fact has great, even vast, discretion in determining the credibility of the evidence." Duvio v. Specialty Pools Co., L.L.C., 2015-0423, p. 25 (La.App. 4 Cir. 6/16/16), 216 So.3d 999, 1016. Courts routinely reject attempts to nit-pick at the complexities of the data and inferences supporting an expert's opinions. Whether such granular issues render an expert's testimony not credible is a judgment for the trial court. See

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Cite This Page — Counsel Stack

Bluebook (online)
249 So. 3d 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cibilic-v-cox-operating-llc-lactapp-2018.