John A. Adema, Rodi W. Adema, Patrick M. Adema, Beth Adema Cury, Patricia Talley Featherstone, Lauren Talley Mills v. Southern Natural Gas Company, L.L.C., High Point Gas Transmission, LLC, and High Point Gas Gathering, L.L.C.

• Court: Louisiana Court of Appeal
• Decided: May 1, 2023
• Docket: 2023-C-0052
• Status: Published

Opinion

CORRECTED COPY

JOHN A. ADEMA, RODI W. * NO. 2023-C-0052 ADEMA, PATRICK M. ADEMA, BETH ADEMA * CURY, PATRICIA TALLEY COURT OF APPEAL FEATHERSTONE, LAUREN * TALLEY MILLS, ET AL. FOURTH CIRCUIT * VERSUS STATE OF LOUISIANA ******* SOUTHERN NATURAL GAS COMPANY, L.L.C., HIGH POINT GAS TRANSMISSION, LLC, AND HIGH POINT GAS GATHERING, L.L.C.

ON SUPERVISORY WRIT FROM THE 25TH JDC, PARISH OF PLAQUEMINES NO. 66-691, DIVISION “B” Honorable Michael D. Clement, ****** Judge Karen K. Herman ****** (Court composed of Judge Joy Cossich Lobrano, Judge Paula A. Brown, Judge Karen K. Herman)

Gladstone N. Jones, III Bernard E. Boudreaux, Jr. Michael P. Arata Kevin E. Huddell John T. Arnold Rosa A. Acheson JONES SWANSON HUDDELL & DASCHBACH, LLC 601 Poydras St., Suite 2655 New Orleans, LA 70130

S. Jacob Braud BALLAY, BRAUD & COLON, PLC 8114 Highway 23, Suite 101 Belle Chasse, Louisiana 70037

James R. Swanson H.S. Bartlett III Lance C. McCardle E. Blair Schilling FISHMAN HAYGOOD, L.L.P. 201 St. Charles Ave., Suite 4600 New Orleans, LA 70170 CORRECTED COPY

J. Michael Veron Turner D. Brumby VERON, BICE, PALMER & WILSON, L.L.C. 721 Kirby Street Lake Charles, Louisiana 70601

COUNSEL FOR PLAINTIFFS/RELATORS

Cheryl M. Kornick Kelly B. Becker Laura S. Brown Cristian M. Soler LISKOW & LEWIS 701 Poydras Street, Suite 5000 New Orleans, LA 70139

Jamie D. Rhymes LISKOW & LEWIS 822 Harding Street Lafayette, LA 70503

Richard D. McConnell, Jr. KEAN MILLER, LLP 400 Convention Street, Suite 700 Baton Rouge, LA 70802

Michael R. Phillips Claire E. Juneau Rachel M. Scarafia Jeffrey J. Gelpi KEAN MILLER, LLP 909 Poydras Street, Suite 3600 New Orleans, LA 701112

COUNSEL FOR DEFENDANTS/RESPONDENTS

WRIT GRANTED, JUDGMENT REVERSED AND REMANDED MAY 1, 2023 KKH JCL PAB This is an action by several owners of wetlands property in Plaquemines

Parish asserting claims for breach of contract, tort, and violations of the Louisiana

Unfair Trade Practices against three pipeline companies, Southern Natural Gas

Company, L.L.C., High Point Gas Gathering, L.L.C., and High Point Gas

Transmission, L.L.C. (hereinafter “pipeline companies”). Applicants-Plaintiffs

now seek review of the trial court’s December 22, 2022 judgment sustaining in

part an exception of no cause of action. For the following reasons, we find that the

trial court erred in partially granting the defendants’ exception of no cause of

action. We therefore reverse the December 22, 2022 judgment and remand the case

to the trial court for further proceedings.

Factual and Procedural Background

This matter arises out of a dispute between members of two families who are

owners of coastal wetland property in Plaquemines Parish, and three companies to

which Plaintiffs’ predecessors-in-interest had given rights of way permitting the

companies to use the properties to install, maintain and dredge canals, and to

maintain pipelines on those properties for the transportation of gas, oil or other

1 substances, and commodities. Those rights of way (“ROWs”) had been granted

beginning in 1952 with the final agreement taking place in 1970. Plaintiffs alleged

in their Petition and First Amended Petition that the ROWs expressly limited the

width of the canals, and that the failure to properly maintain the canals within those

widths caused the erosion of the canal banks and the loss of Plaintiffs’ land.

In response to the claims made by the Plaintiffs, the defendants filed

exceptions contending that no matter whether asserted under contract or tort law,

or pursuant to the Louisiana Unfair Trade Practices Act (LUTPA), Plaintiffs had

no cause of action “to seek redress for the alleged failure of Defendants to prevent

natural forces from affecting Plaintiffs’ property or for the damage caused by

natural forces.” Further, defendants maintained that “even if Plaintiffs had a legal

basis to seek redress for Defendants’ alleged failure to prevent natural forces from

affecting Plaintiffs’ properly, any such claim prescribed decades ago.”

In a judgment dated December 22, 2022, the trial court overruled the

exception of prescription. As to the exception of no cause of action, the trial court

overruled it “as to the tort claims based on the affirmative actions of defendants,

breach of contract, and violations of the Louisiana Unfair Trade Practices Act;”

sustained the exception “as to the tort claims based on the defendants’ failure to

prevent damage from natural forces;” and granted thirty (30) days to amend their

petition to plead a cause of action. From this ruling, Plaintiffs seek relief.

Standard of Review

An appellate court reviews an exception of no cause of action de novo. See

Succession of Horrell, 2021-0168, p. 7 (La. App. 4 Cir. 11/17/21), 331 So.3d 1072,

1079. When reviewing a trial court’s ruling sustaining an exception of no cause of

action, the court of appeal should review the case de novo because the exception

2 raises a question of law and the “lower court’s decision is based only on the

sufficiency of the petition.” City of New Orleans v. Bd. of Comm’rs of Orleans

Levee Dist., 1993-0690, p. 28 (La. 7/5/94), 640 So.2d 237, 253.

Partial exceptions of no cause of action are discouraged, as the Fourth

Circuit recently pointed out in Parker v. Paladin Contractors, LLC, 2020-0492

(La. App. 4 Cir. 3/3/21), 314 So.3d 1128:

As this court has observed, the jurisprudence of this state “has long disfavored the granting of partial exceptions of no cause of action.” Scott v. Zaheri, 14-0726, p. 3 (La. App. 4 Cir. 12/3/14), 157 So.3d 779, 782-83 (citing Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234, 1239 (La. 1993)). The reason for this disfavor is that granting a partial exception of no cause of action fosters multiple appeals, “which forces an appellate court to consider the merits of the action in a piecemeal fashion.” Zaheri, 14-0726, p. 17, 157 So.3d at 789.

Id. at p. 7, 314 So.3d at 1134. The Fourth Circuit went on to discuss the

Louisiana Supreme Court’s guidance in considering partial exceptions of no

cause of action:

Given this disfavor, the Louisiana Supreme Court in the Subaru case formulated a framework designed to result in “only one appeal in most cases.” Subaru, 616 So.2d at 1242; see also First Nat. Bank of Jefferson Par. v. Lloyd’s Underwriters, 629 So.2d 507, 512 (La. App. 5th Cir. 1993) (observing that the Subaru framework “derives from the Court’s concern for the uneconomical use of judicial time”). Id. at p. 7, 314 So.3d at 1134.

Summarized, the Subaru framework is as follows:

[A] trial court, in considering an exception of no cause of action in multi-claim litigation in which the court might rule in favor of the exceptor on less than all claims or on the rights of less than all parties, must first determine whether (1) the petition asserts several demands or theories of recovery based on a single cause of action arising out of one transaction or occurrence, or (2) the petition is based on several separate and distinct causes of action arising out of separate and distinct transactions or occurrences. If the former, the court should overrule the exception of no cause of action when the petition states a cause of action as to any demand or theory of

3 recovery. If the latter, the court should maintain the exception in part ... 616 So.2d at 1242. Explaining the difference between these two categories, the Supreme Court in the Subaru case observed:

There is only one cause of action (although several demands or theories of recovery may be asserted thereon) when the operative facts of one transaction or occurrence give rise to the plaintiff’s right to assert the action against the defendant. However, there are separate and distinct causes of action when the operative facts of separate and distinct transactions or occurrences give rise to the plaintiff’s right to assert various actions against the defendants. 616 So.2d at 1238-39.

Id. at p. 8, 314 So.3d at 1134-35 (Emphasis supplied).

In the instant case, a fair reading of the Petition and First Amended Petition

yields the conclusion that the allegations contained therein land squarely in the first

Subaru category in that they allege a single set of operative facts: that Plaintiffs are

entitled to relief because of the Defendants’ improper maintenance of the canals at

their allowed widths whether under contract law, tort law or LUTPA.

For the foregoing reasons, we find that the trial court erred in partially

granting the defendants’ exception of no cause of action. Accordingly, we reverse

the December 22, 2022 judgment and remand the case to the trial court for further

proceedings.

WRIT GRANTED, JUDGMENT REVERSED AND REMANDED