John A. Adema, Rodi W. Adema, Patrick M. Adema, Beth Adema Cury, Patricia Talley Featherstone, Lauren Talley Mills, and Dennis J. Talley 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: January 31, 2024
• Docket: 2023-C-0785
• Status: Published

Opinion

JOHN A. ADEMA, RODI W. * NO. 2023-C-0785 ADEMA, PATRICK M. ADEMA, BETH ADEMA * CURY, PATRICIA TALLEY COURT OF APPEAL FEATHERSTONE, LAUREN * TALLEY MILLS, AND DENNIS FOURTH CIRCUIT J. TALLEY, ET AL. * STATE OF LOUISIANA VERSUS *******

SOUTHERN NATURAL GAS COMPANY, L.L.C., HIGH POINT GAS TRANSMISSION, LLC, AND HIGH POINT GAS GATHERING, L.L.C.

APPLICATION FOR WRITS DIRECTED TO 25TH JDC, PARISH OF PLAQUEMINES NO. 66-691, DIVISION “B” Honorable Michael D. Clement ****** Judge Rachael D. Johnson ****** (Court composed of Judge Rosemary Ledet, Judge Rachael D. Johnson, Judge Karen K. Herman)

James R. Swanson H.S. Bartlett III Lance C. McCardle E. Blair Schilling Fishman Haygood, L.L.P. 201 St. Charles Avenue, Suite 4600 New Orleans, Louisiana 70170

Gladstone N. Jones, III Bernard E. Boudreaux, Jr. Michael P. Arata Kevin E. Huddell John T. Arnold Alayne Gobeille Thomas F. Dixon Rosa A. Acheson Jones Swanson Huddell 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

J. Michael Veron Turner D. Brumby VERON, BICE, PALERMO & WILSON, L.L.C. 721 Kirby Street (70601) P.O. Box 2125 Lake Charles, Louisiana 70602

COUNSEL FOR RELATOR

Cheryl M. Kornick Kelly B. Becker Laura S. Brown Cristian M. Soler LISKOW & LEWIS Hancock Whitney Center 701 Poydras Street, Suite 5000 New Orleans, Louisiana 70139-5099

Richard D. McConnell, Jr. KEAN MILLER, LLP 400 Convention Street, Suite 700 P.O. Box 3513 (70821-3513 Baton Rouge, LA 70802

Jamie D. Rhymes LISKOW & LEWIS 1200 Camelia Blvd., Suite 300 Lafayette, Louisiana 70508

COUNSEL FOR RESPONDENTS-High Point Gas Transmission, LLC and High Point Gas Gathering, L.L.C. Michael R. Phillips Claire E. Juneau Jeffrey J. Gelpi KEAN MILLER, LLP First Bank and Trust Tower 909 Poydras Street, Suite 3600 New Orleans, LA 70112

COUNSEL FOR RESPONDENTS-Southern Natural Gas Company

WRIT GRANTED; JUDGMENT REVERSED AND REMANDED JANUARY 31, 2024 RDJ Relators, plaintiffs John A. Adema, Rodi W. Adema, Patrick M. Adema, RML Beth Adema Cury, Patricia Talley Featherstone, Lauren Talley Mills, and Dennis J. KKH Talley, (collectively, “the Relators”) seek review of the November 7, 2023 district

court judgment, granting Respondents, defendants High Point Gas Transmission,

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

L.L.C.’s (collectively, “the Respondents”) motion for summary judgment. We

grant the Relator’s writ application and reverse the district court’s judgment,

finding that there are genuine issues of material fact which preclude summary

judgment.

FACTS AND PROCEDURAL HISTORY

The facts of this matter were previously set forth in Adema v. S. Nat. Gas

Co., L.L.C., 23-0052, pp. 1-2 (La. App. 4 Cir. 5/1/23), 367 So.3d 773, 775, as

follows:

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 substances, and

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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.

The Respondents moved for summary judgment on causation, asserting that

they can only be held liable for loss caused by their own actions as opposed to all

land loss regardless of cause. The Respondents attached the affidavit of their

counsel, Cristian Soler, in support of the motion. In his affidavit, Mr. Soler

attested to having personal knowledge of the facts included in the affidavit.

Attached to his affidavit were the six ROWs1 produced during discovery by the

Relators as well as two Louisiana Coastal Master Plans (“the Master Plans”) from

2017 and 2023, respectively, which he attested to accessing and downloading from

the Coastal Protection and Restoration Authority’s website. Further, Mr. Soler

stated that the copies of the Master Plans attached to his affidavit were true and

correct.

Following a hearing, the district court granted the motion for summary

judgment on November 7, 2023, “as to the tort claims based on the defendants’

failure to prevent damage from natural forces.” The district court reasoned that,

pursuant to the ROWS, the parties agreed that the Respondents are not strictly

liable for all canal widening, and therefore, can only be liable for damages caused

by improper or unauthorized activity. The Relators timely sought supervisory

review of the district court’s judgment.

1 The six ROWs are the 1952 ROW, the First 1958 ROW, Second 1958 ROW, the 1967 ROW,

the 1968 ROW and the 1970 ROW.

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STANDARD OF REVIEW

Appellate courts review a district court’s decision to grant a motion for

summary judgment de novo. Guilbeaux v. Lupo Enterprises, L.L.C., 21-0053, p. 4

(La. App. 4 Cir. 5/19/21), 321 So.3d 447, 451. “A motion for summary judgment

shall be granted if the motion, memorandum, and supporting documents show that

there is no genuine issue as to material fact and that the mover is entitled to

judgment as a matter of law.” La. Code Civ. Proc. art. 966(A)(3). “In determining

whether an issue is genuine, courts cannot consider the merits, make credibility

determinations, evaluate testimony, or weigh evidence.” Lewis v. Jazz Casino Co.,

17-0935, p. 6 (La. App. 4 Cir. 4/26/18), 245 So.3d 68, 72 (citations omitted).

Here, we apply the de novo standard to the matter sub judice.

DISCUSSION

Pursuant to our de novo review, we find that genuine issues of material fact

exist as to whether the Respondents owed the Relators a duty and whether there

has been a breach of that duty because the intent of the parties cannot be

determined from the ROWs. The ROWs contain ambiguities as to the

Respondents’ duty and obligations. We further find that Mr. Soler’s affidavit is

facially deficient.

The instant matter involves the interpretation of the ROWs, which are

contractual agreements. See Morgan City Land & Fur Co., L.L.C. v. Tennessee

Gas Pipeline Co., L.L.C., 2020-0676, p.8 (La. App. 4 Cir. 4/21/21), 319 So.3d 437,

444. “The determination of whether a contract is clear or ambiguous is a question

of law.” Sims v. Mulhearn Funeral Home, Inc., 07-0054, p. 9 (La. 5/22/07), 956

So.2d 583, 590.

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There are discrepancies in the terms of the five ROWs executed prior to

19702 (“the Older ROWs”) and the 1970 ROW which make it unclear whether the

parties intended to expand the Respondents’ obligations when the Relators’

allowed them to widen the width of the canal from 40 feet up to 65 feet in the 1970

ROW. The language in the 1970 ROW obligated the Respondents to pay for all

property loss or damage “arising wholly or in part from or in connection with the

existence, construction, maintenance, repair, operation, use, removal, alteration,

reconstruction or removal of the aforesaid pipeline or canal . . . .” In contrast, the

Older ROWs did not require the Respondents to pay for property loss or damages

associated with the canal.

Additionally, all of the ROWs contain language limiting the width of the

canal but at varying widths. The Older ROWs permit the Respondents to fill in or

leave open the canal, but specify that the width of the canal could not exceed 40

feet in the ROWs executed from 1952 through 1958 nor 25 feet in the two ROWs

executed in 1967. This language creates an ambiguity as to the Respondents’ duty

to maintain the canals though they had the option to fill in or leave the canal open.

In contrast, the 1970 ROW provided: the width of the canal could not exceed 65

feet; the Respondents were required to obstruct water flow and marine traffic— as

directed by the Relators— through the installation and maintenance of dams at the

Respondents’ expense; and, that the purpose of the installation of the dams is to

“prevent undue erosion, drainage, flooding, infiltration of salt water or intrusion of

trespassers of or upon Grantor’s [Relators’] land.” Due to the inconsistencies in

the terms of the ROWs it is unclear whether they, when interpreted collectively,

2 The five ROWs referred to here are the December 31, 1952 ROW, the January 7, 1958 ROW, the February 3, 1958 ROW, the July 21, 1967 ROW, and the October 24, 1967 ROW.

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created a duty obligating the Respondents to repair all land loss stemming from

their dredging of the canal, even if some portion of the loss was created by natural

forces.

Lastly, we find that Mr. Soler’s affidavit is incompetent summary judgment

evidence. In his affidavit, Mr. Soler attests to having personal knowledge of the

Master Plans and learning of the same from the Coastal Protection and Restoration

Authority (“CPRA”). Mr. Soler, however, is not the custodian of the CPRA’s

records. Supporting affidavits are required to be made on personal knowledge,

which “means something which a witness actually saw or heard” as opposed to

something a witness learned from an outside source. La. Code Civ. Proc. art.

967(A); Harris v. Boh Bros. Constr. Co., L.L.C., 20-0248, p. 8 (La. App. 4 Cir.

5/26/21), 322 So.3d 397, 405 (citation omitted). Moreover, only certified copies

of public documents may be filed or referenced in support of or in opposition to a

motion for summary judgment. La. Code Civ. Proc. art. 966(A)(4)(a). Records can

only be certified by the person designated as the keeper of the same. The copy of

the Master Plans attached to Mr. Soler’s affidavit are uncertified and

unauthenticated. Labarre v. Occidental Chem. Co. & Texas Brine Co., LLC, 17-

1370, p. 20 (La. App. 1 Cir. 6/4/18), 251 So. 3d 1092, 1105 (holding on de novo

review of a motion for summary judgment “that attaching documents to an

affidavit of an attorney on the case, not the keeper of the records, and designating

the records as a ‘true and correct copy’ does not authenticate, certify, or make them

admissible). The deficiencies in Mr. Soler’s affidavit and the attached Master

Plans make them incompetent summary judgment evidence that cannot be relied

upon.

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DECREE

For the foregoing reasons, the Relators’ writ application is granted. The

November 7, 2023 district court judgment is reversed and this matter is remanded

for further proceedings.

WRIT GRANTED; JUDGMENT REVERSED AND REMANDED