source: Caselaw Access Project

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text:
    W & T OFFSHORE, L.L.C. v. TEXAS BRINE CORPORATION and Texas Brine Company, L.L.C.
    Texas Brine Company, L.L.C. v. W & T Offshore, L.L.C.
    2017 CA 0574, 2017 CA 0575
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: MAY 10, 2018
    Troy J. Charpentier, Matthew B. Smith, Baton Rouge, LA, Attorneys for Defendants/Appellees Texas Brine Company, L.L.C. and Texas Brine Corporation
    W. Scott Keaty, Joshua G. McDiarmid, Baton Rouge, LA, Attorneys for Amicus Curiae E.W. Brown, Jr. Properties F/B/O LDSBB, LP, Charles E. Brown, Jr. Properties, LP, Carrie B. Henley Properties, LP, Robert S. Brown Properties, LP, Richard E. Brown, Michael S. Brown, Mary Robbins Brown-Jones, JCC Brown Properties Louisiana, LP, Donner Properties, LLC, Diana L. Chance, Agent for Donner, Estate of Carolyn B. Negley, Estate of Joan B. Winter and Odom Louisiana Properties, LLC
    Daniel Davillier, Michael P. Schillage, Charles F. Zimmer, New Orleans, LA, Attorneys for Plaintiff/Appellant W & T Offshore, L.L.C.
    M. Taylor Darden, Andrew J. Brien, New Orleans, LA, Attorneys for Amicus Curiae Louisiana Landowners Association, Inc.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

Defendant/appellant, W & T Offshore, L.L.C., appeals a judgment of the trial court denying its claim for injunctive relief and damages against plaintiffs/appellees, Texas Brine Company, L.L.C., and Texas Brine Corporation.

FACTUAL AND PROCEDURAL HISTORY

In 1979 Texas Brine entered into a "Salt and Underground Storage Lease" (1979 lease) with W & T's predecessors in interest to utilize land in Lafourche Parish, identified as Estate of E.W. Brown, et al., located at Section 59, 64, and 71, T15S-R15E (the Brown property) for conducting salt mining operations. The 1979 lease had an initial term of ten years and would last "so long thereafter as salt or salt brine [were] produced from the property[.]" The 1979 lease included a personal servitude of right of use, granting Texas Brine the authority to construct a pipeline on the leased premises, which provided, in pertinent part:

[Texas Brine] shall have the right to construct, operate and maintain a pipeline for the transportation of brine over and across additional property of Lessor comprising the North one-half Section ... of Section 64 and all of Section 59, Township 15 South, Range 15 East, Parish of La[f]ourche, Louisiana, on such portion of the property as designated by [Texas Brine] and as approved by Lessor, such approval not to be unreasonably withheld. (Emphasis added.)

In 1980, Texas Brine constructed a fourteen inch in diameter and 6.7 mile long pipeline across Section 59 of the Brown property pursuant to the 1979 lease. If properly maintained, it was anticipated that the pipeline would be useful for approximately thirty years. In 1993, W & T attained a 23.66% undivided interest in the Brown property becoming the largest co-owner of the Brown property.

In February 2014, Texas Brine filed an application for a permit from the U.S. Army Corps of Engineers for the construction of a second pipeline (replacement pipeline) on Section 59 of the Brown property to replace the fourteen inch brine pipeline. The replacement pipeline was to be constructed eight feet away from the original pipeline. W & T claimed it was not consulted before Texas Brine sought its permit from the U.S. Army Corps of Engineers.

In November of 2014, Texas Brine began negotiations with W & T and the owners of the remaining 76.34% undivided interest of the Brown property to abandon the first pipeline and construct a replacement pipeline adjacent to the existing line. On August 7, 2015, Texas Brine filed a "Pipeline Right-of-Way" Agreement in the conveyance records of Lafourche Parish, showing that 76.34% of the owners of the Brown property granted Texas Brine "the right to lay, construct, maintain, replace, change the size of, move, remove and operate a single pipeline not to exceed eighteen inches ... diameter upon completion, and no more than twenty-four ... inches upon completion of a replacement pipeline ... for the transportation of brine and other fluids[.]" Texas Brine alleged that this agreement allowed it to construct a replacement pipeline adjacent to the original pipeline. W & T did not join the other 76.34% co-owners in agreeing to sign the "Pipeline Right-of-Way" Agreement.

Texas Brine allegedly began construction of the replacement pipeline in August of 2015 and it was completed on November 7, 2015. The replacement pipeline was larger and entirely separate from the first pipeline, as it was eighteen inches in diameter, approximately seven miles long, and approximately eight feet away from the original pipeline.

On November 12, 2015, counsel for W & T sent a letter to Texas Brine, informing it that W & T did not consent to the construction of the replacement pipeline located on the Brown property and that consent of all of the co-owners of the Brown property was required for the granting of a pipeline right of way on the property, and further requesting that Texas Brine "immediately cease and desist from the illegal construction activities on its property."

In response, Texas Brine filed a Petition for Declaratory Judgment and Injunctive Relief on November 24, 2015, (docket number 128754) alleging that the 1979 lease granted it "the right to lay pipelines, and to build roads and other structures on the [Brown] Property as necessary to produce, save, take care of, treat, transport and own said salt and salt brine." Texas Brine stated that it was entitled to a declaratory judgment recognizing that it was entitled to replace the brine pipeline crossing the Brown property under the terms of the 1979 lease and the 2015 "Pipeline Right-of-Way" Agreement.

On November 24, 2015, W & T filed a Petition for Temporary Restraining Order (TRO) and Preliminary and Permanent Injunctive relief (docket number 128742). The trial court granted W & T's request for TRO restraining, enjoining, and prohibiting Texas Brine from continuing the unauthorized pipeline construction on the Brown property.

On December 1, 2015, Texas Brine filed a "Motion for Dissolution of Temporary Restraining Order and Damages" (docket number 128742). On December 3, 2015, W & T amended its petition to request a claim for injunctive relief, declaratory relief, and damages (docket number 128742). In its amended petition, W & T alleged that Texas Brine did not have the authority to construct a new pipeline across the Brown property pursuant to La. C.C. art. 805.

A hearing was held on December 4, 2015, on W & T's petition for a preliminary injunction. At that hearing, the trial court dissolved W & T's TRO concurrently with its request for a preliminary injunction because Texas Brine had completed the construction of the replacement pipeline.

In January 2016, Texas Brine filed a motion to consolidate docket number 128742 with W & T's petition requesting a preliminary injunction filed in November of 2015, bearing docket number 128754. The trial court granted the motion to consolidate. Thereafter, on February 1, 2016, after several amended petitions were filed, W & T filed its "Third Amended Petition for a Possessory Action, Injunctive Relief, Mandatory Injunction, Trespass, and Damages." In its petition, W & T first asserted that it was entitled to a possessory action, requesting that the trial court maintain W & T in its possession and enjoyment of the Brown property, which Texas Brine disturbed by filing the "legally deficient Right of Way Agreement[.]" Secondly, W & T alleged that it was entitled to a preliminary and a permanent injunction because Texas Brine "improperly constructed a Second Pipeline on the Non-Leased premises and ha[d] disturbed and continue[d] to disturb W & T's possession of the [Brown property.]" Additionally, W & T alleged that it was entitled to a mandatory injunction, requiring Texas Brine to remove the replacement pipeline and restore the Brown property to the state in which it existed prior to its construction. W & T further alleged that the trial court should award it damages for trespass for Texas Brine's unauthorized construction of the replacement pipeline. Lastly, W & T maintained that Texas Brine acted in bad faith and the trial court should award it damages.

In response, Texas Brine filed an "Amended Petition Requesting Preliminary Injunction" requesting a mandatory preliminary injunction requiring W & T to grant it a servitude allowing the replacement pipeline to be placed in service during the pendency of the proceedings. Texas Brine alleged that it was entitled to injunctive relief because it was in the public's interest to minimize the risks of environmental damage which may be caused if a leak were to occur. Texas Brine further alleged that W & T's "refusal to acknowledge Texas Brine's right to place the replacement pipeline in service amount[ed] to an interference with the real rights granted to Texas Brine in the 1979 [lease.]"

On April 5, 2016, the trial court held a hearing on W & T's injunctive relief claim. John Sergo, the Vice President of United Brine Services Company, LLC, a subsidiary of Texas Brine, testified that Texas Brine was going to remove the original pipeline on the Brown property. On April 22, 2016, the trial court signed a judgment granting Texas Brine injunctive relief. The trial court also granted Texas Brine a mandatory injunction in favor of Texas Brine, stating in its reasons for judgment that the "court fe[lt] that as a public policy interest to protect the environment, a mandatory injunction should be issued to put the 'new' pipeline into service in order to prevent further leakages." The trial court's judgment further denied W & T's request for injunctive relief. In response, Texas Brine filed a motion for new trial stating that the April 22, 2016 judgment did not fix an amount for security as required by La. C.C.P. art. 3610, and it "did not describe in reasonable detail the act or acts to be taken."

After a hearing was held, the trial court signed a judgment on July 8, 2016, stating that "a preliminary injunction be issued against W & T ... restraining and enjoining W & T from interfering, in any manner whatsoever, with the operation or maintenance of the replacement pipeline constructed by Texas Brine ... across property situated [on the Brown property.]" A bench trial was held on October 11, 2016 on the parties remaining claims. After hearing arguments from both parties, the trial court signed a judgment on January 27, 2017, dismissing with prejudice W & T's possessory action claim, petition for permanent injunction, claim for trespass and damages, and its bad faith claim against Texas Brine. The trial court granted Texas Brine's petition for declaratory relief stating in its judgment "that Texas Brine ha[d] the right to replace the original 14 inch pipeline with an 18 inch line eight feet away from the sight of the original pursuant to La. [C.C.] art. 642." The trial court issued reasons for judgment, stating "that the right to replace the original pipeline with another outside of the original's footprint was necessary to the enjoyment of the rights granted under the lease[.]" W & T subsequently appealed the January 27, 2017 judgment.

On April 27, 2017, this court issued a rule to show cause, stating that the January 27, 2017 judgment failed to "describe the immovable property at issue with sufficient particularity" in accordance with La. C.C.P. art. 1919. This court referred the rule to show cause to the panel hearing the merits of the appeal. The trial court signed an amended judgment on May 30, 2017, correcting the error by adding the legal description of the subject property in the final judgment. Therefore, the appeal is maintained.

APPLICABLE LAW

There are two kinds of servitudes: personal servitudes and predial servitudes. La. C.C. art. 533. Personal servitudes of right of use confer upon a person a specified use of an estate less than full enjoyment. La. C.C. arts. 534 and 639. The right of use may confer only an advantage that may be established by a predial servitude. La. C.C. art. 640. Rights of use are real rights which confer limited advantages of use or enjoyment over an immovable. Richard v. Hall, 2003-1488, (La. 4/23/04), 874 So.2d 131, 145. A right of use includes the rights contemplated or necessary to enjoyment when the servitude was created. La. C.C. art. 642. Additionally, rights that may later become necessary are included in the right of use, provided that a greater burden is not imposed on the property, unless the title stipulates otherwise. La. C.C. art. 642. Further, a right of use is regulated by application of the rules governing predial servitudes to the extent that their application is compatible with the rules governing a right of use servitude. La. C.C. art. 645.

Judgments regarding servitudes are reviewed under the manifest error standard of review. An appellate court may not set aside a trial court's findings of fact unless they are manifestly erroneous or clearly wrong. To reverse under the manifest error rule, an appellate court must find from the record that there is no reasonable basis for the trial court's finding and that the record shows the finding to be manifestly erroneous. 1026 Conti Condominiums, LLC v. 1025 Bienville, LLC, 2015-0301 (La. App. 4 Cir. 12/23/15), 183 So.3d 724, 727, writ denied, 2016-0144 (La. 3/14/16), 189 So.3d 1067.

DISCUSSION

Motion to Strike

We must first address W & T's Motion to Strike Texas Brine's brief on appeal. W & T alleges that Texas Brine's brief was in violation of Uniform Rule 2-12.2(C), which prohibits language in briefs from including "vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution." W & T asserts that Texas Brine's brief alleged that Tracy W. Krohn, the owner of W & T, extorted Texas Brine during the pipeline negotiations. W & T argues that the record does not contain any elements of extortion, and no such claim has been presented prior to Texas Brine's brief on appeal. After reviewing the record, we grant W & T's motion to strike the portions of Texas Brine's brief referencing to any extortion claim of Mr. Krohn from the record, and we admonish Texas Brine's counsel to abide by our rules and to consider the consequences of making future accusations of criminal behavior against parties to litigation in brief to this court.

Use and Extent of the Servitude

In its second assignment of error, W & T asserts that the 1979 lease evidences the parties' mutual intent and is the law between the parties. Therefore, W & T argues that the trial court erred in "using pipeline lifespan estimates" to alter the intent of the parties in order to expand the 1979 lease and find that Texas Brine's right to replace the pipeline was contemplated or necessary to the enjoyment of its personal servitude of right of use. W & T does not dispute that Texas Brine was allowed to replace the original pipeline; however, it argues that in accordance with the 1979 lease, Texas Brine had to remove the original pipeline and replace it with a new pipeline in the same location as the original. Additionally, W & T argues that because the 1979 lease is silent as to the anticipated lifespan of the pipeline, replacement of the pipeline, size limitation of the pipeline, or specific location of the pipeline in Section 59, all doubt as to the existence and extent of the servitude shall be resolved in favor of the servient estate. See La. C.C. art. 730.

Texas Brine counters that it had a right to construct the replacement pipeline in accordance with La. C.C. art. 642, because it became necessary for the enjoyment of the personal servitude of right of use. Texas Brine argues that the 1979 lease gave it the authority to maintain the original pipeline and, consistent with its purpose, after decades of repairing the original pipeline, the only way to safely maintain the original pipeline was by replacing it with a second pipeline. Texas Brine argues that a servitude holder may use a greater area of the property than that specified in the grant in connection with its use of the servitude, so long as it compensates the landowner for any damages caused by the work. Therefore, Texas Brine argues that the trial court correctly stated in its reasons for judgment that "La. [C.C.] art. 642 does provide Texas Brine ... the right to replace the original pipeline ... [because] the right to replace the original pipeline with another outside of the original's footprint was necessary to the enjoyment of the rights granted under the [1979] lease[.]"

The 1979 lease created a personal servitude of right of use on the Brown property. The use and extent of the personal servitude of right of use is regulated by the 1979 lease and must be interpreted pursuant to the general rules for interpreting contracts, found in La. C.C. art. 2045 et seq. , and the special rules for interpreting servitude contracts found in La. C.C. arts. 697 - 734. Carbo v. City of Slidell, 2001-0170 (La. App. 1 Cir. 1/8/03), 844 So.2d 1, 11, writ denied, 2003-0392 (La. 4/25/03), 842 So.2d 400. The cardinal rule of contractual interpretation is that the intention of the parties governs. See Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 2012-2055 (La. 3/19/13), 112 So.3d 187, 192. Thus, the intention of the parties is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the agreement and by giving consideration on a practical basis to the instrument in its entirety. Dunn v. Potomac Ins. Co. of Illinois, 94-2202 (La. App. 1 Cir. 6/23/95), 657 So.2d 660, 663.

A personal servitude of right of use may be established by juridical act, such as a contract. See Carbo, 844 So.2d at 11. The 1979 lease established a right of use servitude in favor of Texas Brine giving it the right to construct, operate, and maintain a pipeline for the transportation of brine over and across the Brown property for ten years and "so long thereafter as salt or salt brine [were] produced from the [Brown property.]" Texas Brine has continuously mined salt through a brine pipeline since 1980 on the Brown property and intends to continue in the future. Texas Brine alleges that it maintained the original pipeline by constructing a replacement pipeline in order to protect the Brown property.

At trial, Bill Wood, who was employed by Texas Brine as a chemical engineer, testified as an expert regarding the original pipeline's life expectancy. Mr. Wood testified that the life expectancy of the original pipeline at the time of its construction was anywhere from twenty to thirty years and it was prudent that it be replaced. Mr. Wood testified that the original pipeline was left in place after construction of the replacement pipeline because it was standard practice. Mr. Sergo also testified at trial and stated that Texas Brine was unable to construct the replacement pipeline on top of the original pipeline on the Brown property.

We must determine if it was necessary to the enjoyment of the personal servitude of right of use for Texas Brine to replace the original pipeline with a replacement pipeline as close as practically possible to the original. Louisiana Civil Code article 642 specifically states that a personal servitude of right of use includes "rights contemplated or necessary to enjoyment at the time of [the servitude's] creation as well as rights that may later become necessary, provided that a greater burden is not imposed on the property, unless otherwise stipulated in the title." (Emphasis added.) Thus, La. C.C. art. 642 considers two types of rights that are not specifically addressed in the granting document, which include those necessary to the enjoyment at the time of its creation and those that may later become necessary. The trial court found that the right to replace the original pipeline with a replacement pipeline as close as practically possible to the original was necessary to the enjoyment of the rights granted under the 1979 lease. In its reasons for judgment the trial court stated, in pertinent part:

Based upon the evidence admitted and testimony adduced at trial, the Court finds that La. [C.C.] art. 642 does provide Texas Brine Co. the right to replace the original pipeline. Specifically, the Court finds that the right to replace the original pipeline with another outside of the original's footprint was necessary to the enjoyment of the rights granted under the lease and contemplated at the time of execution. The caustic nature of the brine necessarily would require a replacement line once the original line had served its purpose considering the leased property has reserves capable of production for potentially two centuries or more because of the indeterminate nature of the lease. Thus, the Court holds that Texas Brine does have the right to lay a replacement pipeline eight feet away from the original line since this new location is as close as practically possible to the original area.
* * * *
Thus reading the law of personal servitudes together with the relevant provisions of the Mineral Code and accompanying jurisprudence, the Court hereby finds that based on the facts of this matter, the right for Texas Brine to enlarge the servitude area to eighteen inches is a right necessary to the enjoyment of the rights under the mineral lease at the time of its execution in 1979.
However, another issue concerns the parties' rights under La. [C.C.] art. 642.... Specifically, whether the final clause of La. [C.C.] art. 642 applies to not only those rights that "may later become necessary" for the enjoyment of servitude, but also whether this "greater burden" language applies to those rights that were contemplated or necessary to the enjoyment of the servitude at the time of its execution.
La. [C.C.] art. 10 states in whole: "When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law." Thus, the Civil Code prefers purposive constructions rather than literal constructions when the language itself is susceptible of different meanings. La. [C.C.] art. 10, cmt. b. Here, the language of La. [C.C.] art. 642 is susceptible of different meanings; specifically, whether the article's clause concerning greater burdens modifies the entire text or rather just those rights that later become necessary.
Because article 642 is primarily an expansion, rather than restriction, of rights granted under rights-of-use, the Court holds that the "greater burden" language of the article does not modify those rights that were contemplated or necessary to the enjoyment of the right of use at the time of its creation. This construction is necessary since it "best conforms to the purpose of the law."

After reviewing the record as a whole, we find that the trial court correctly determined that replacement of the original pipeline is proper under article 642, as it became necessary for the enjoyment of the personal servitude of right of use granted to Texas Brine under the 1979 lease. Although the 1979 lease does not include specific language regarding the replacement of the original pipeline, it is unreasonable to conclude that the original parties contracting the 1979 lease did not contemplate that the original pipeline constructed on the Brown property would eventually need replacement. If a contract is silent as to the extent and manner of use of the servitude, the intention of the parties is to be determined in light of its purpose. La. C.C. art. 749 ; Platt v. Rimmer, 2016-223 (La. App. 3 Cir. 10/12/16), 203 So.3d 553, 556. In the instant matter, the 1979 lease states that its purpose is "for the purpose of investigating, exploring, prospecting, drilling and mining for and producing salt and salt brine, laying pipe lines ... and other structures thereon to produce ... transport ... salt and salt brine[.]" The 1979 lease further gives Texas Brine the right to "construct, operate and maintain a pipeline" on the Brown property. In order to maintain a pipeline, the lease must have contemplated that a new pipeline would have to be constructed when the original pipeline needed to be replaced.

Considering the testimonial and documentary evidence in the record establishing that the original pipeline had been leaking for years and many repairs had been made, it is evident that replacement of the original pipeline was imminent and necessary to Texas Brine's enjoyment of its personal servitude of right of use. It is also evident from the record that the replacement pipeline was constructed as close as practically possible to the original pipeline. The 1979 lease evidences that the purpose of the personal servitude right of use is for producing salt brine and laying pipelines. In light of the purpose of the 1979 lease, we can determine the parties' intent in regard to the scope of the personal servitude right of use was to have the continuous production and transportation of salt brine over the Brown property, which requires the construction of a replacement pipeline. Therefore, we find that the 1979 lease included the right for Texas Brine to construct a replacement pipeline and this right is afforded to it under La. C.C. art. 642 as a right for the enjoyment of its personal servitude of right of use.

Trespass Claim

Furthermore, we find that Texas Brine should not have constructed a larger replacement pipeline without the consent of all the co-owners of the Brown property. Louisiana Civil Code article 805 provides that the consent of all the co-owners is required for the lease, alienation, or encumbrance of the entire thing held in indivision. Louisiana Civil Code article 804 provides that "[s]ubstantial alterations or improvements to the thing held in indivision may be undertaken only with the consent of all the co-owners. " (Emphasis added.) Louisiana Civil Code article 801 provides that "[t]he use and management of the thing held in indivision is determined by agreement of all the co-owners. " (Emphasis added.)

While all of the co-owners, including W & T, of the Brown property were not required to consent to the installation of the replacement pipeline, their consent was necessary to enlarge the replacement pipeline over Section 59 of the Brown property. We find that the 1979 lease grants Texas Brine the right to construct a replacement pipeline as close as practically possible to the original pipeline. However, Texas Brine did not obtain the consent of all co-owners of the Brown property before starting construction of the larger replacement pipeline. Thus, Texas Brine is responsible for any trespass damages or any other damages caused by constructing a larger replacement pipeline without the consent of all of the co-owners on the Brown property because this constituted an alteration and/or improvement on the property that was not provided for in the 1979 lease. As noted in the trial court's reasons for judgment, "the language of the servitude conferral is silent as far as the width of the pipeline is concerned." Any increase in the size of the pipeline is a substantive improvement and alteration on the Brown property, which would require all of the co-owners consent. See La. C.C. art. 804 ; see Ethridge v. UCAR Pipeline, Inc., 2012-03086, 2014 WL 2155219, at *3 (W.D. La. May 22, 2014).

Trespass is defined as an unlawful physical invasion of the property or possession of another person. Davis v. Culpepper, 34,736 (La. App. 2 Cir. 7/11/01), 794 So.2d 68, 75, writ denied, 2001-2573 (La. 12/14/01), 804 So.2d 646. A trespasser is one who goes upon another's property without his consent. Id. A person damaged by trespass is entitled to full indemnification. Id. We find that W & T has a trespass claim against Texas Brine for the unauthorized construction of the larger replacement pipeline on the Brown property because all of the co-owners did not consent to the construction of the replacement pipeline. W & T is entitled to full indemnification for the damages caused. Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess some damages based upon all of the facts and circumstances. Mathews v. Steib, 2011-0356 (La. App. 1 Cir. 12/15/11), 82 So.3d 483, 488, writ denied, 2012-0106 (La. 3/23/12), 85 So.3d 90. Therefore, we remand this matter to the trial court to determine the amount of damages that should be awarded to W & T, including the trespass damages for constructing a larger pipeline without its consent, as well as the amount owed to W & T for the servitude expansion on the Brown property.

CONCLUSION

For the above reasons, we affirm the trial court's May 30, 2017 judgment, in part, insofar as it dismissed with prejudice W & T's possessory action, permanent injunction, and bad faith claim. We vacate the trial court's May 30, 2017 judgment, in part, insofar as it dismissed with prejudice W & T's trespass and damage claims. This matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are divided equally between the parties.

MOTION GRANTED; AFFIRMED IN PART; VACATED IN PART; AND REMANDED IN PART.

      E.W. Brown, Jr. Properties F/B/O, LDSBB, LP, Charles E. Brown, Jr. Properties, LP, Carrie B. Henley Properties, LP, Robert S. Brown Properties, LP, Richard E. Brown, Michael S. Brown, Mary Robbins Brown-Jones, JCC Brown Properties Louisiana, LP, Donner Properties, LLC, Diana L. Chance, Agent for Donner, Estate of Carolyn B. Negley, Estate of Joan B. Winter, Odom Louisiana Properties, LLC, filed an amicus curiae brief in support of Texas Brine's appeal of this matter. Louisiana Landowners Association, Inc. filed an amicus curiae brief in support of W & T's appeal of this matter.

      Texas Brine Company was the successor-in-interest to Texas Brine Corporation.

      W & T was a Texas Corporation that jointly owned an undivided interest in the Brown property.

      Louisiana Civil Code article 805 states "[a] co-owner may freely lease, alienate, or encumber his share of the thing held in indivision. The consent of all the co-owners is required for the lease, alienation, or encumbrance of the entire thing held in indivision."

      Following the December 4, 2015 hearing, W & T filed a second supplemental and amended petition for injunctive and declaratory relief, as well as a TRO and damages. On the same day, W & T filed a second motion for preliminary injunction.

      The record only contains a portion of the transcript from this hearing and does not contain the trial court's judgment.

      Louisiana Code of Civil Procedure article 1919 states "[a]ll final judgments which affect title to immovable property shall describe the immovable property affected with particularity."

      The 1979 lease does not contemplate that Texas Brine can have two servitudes on the Brown property. If the replacement pipeline is put into use, the original pipeline is either to be abandoned or removed in a manner that does the least amount of damage to the Brown property.

      It is noted that W & T did not file an action for an injunction with a request for a TRO until the replacement pipeline had been constructed on the Brown property. In accordance with this opinion, W & T no longer has a right to stop the construction (which had been completed before its TRO action was filed) nor for a mandatory injunction to order Texas Brine to remove the replacement pipeline. However, W & T is entitled to damages for the construction of the larger replacement pipeline that was not provided for in the 1979 lease.

      We make no determination at this time as to the proper amount of damages to be awarded to W & T or whether those damages may take in account the increased profits that may be realized by Texas Brine because of the expansion of the replacement pipeline on the Brown property.

      We note that the dismissal of W & T's possessory action, permanent injunction, and bad faith claim were not raised on appeal. This court only reviews issues raised on appeal. See Uniform Rules-Courts of Appeal 2-12.4 ; American Motorist Insurance Company v. American Rent-All, Inc., 617 So.2d 944, 947 (La. App. 5 Cir. 1993). Therefore, we will not address those claims as they were not raised in the instant matter.


author: McDONALD, J. WHIPPLE, C.J., CONCURRING.

text:
    BAYOU CANARD, INC. v. STATE of Louisiana THROUGH the COASTAL PROTECTION AND RESTORATION AUTHORITY
    2017 CA 1067
    Court of Appeal of Louisiana, First Circuit.
    MAY 14, 2018
    George Pivach, II, Corey E. Dunbar, Belle Chasse, Louisiana, Attorneys for Plaintiff/Appellee, Bayou Canard, Inc.
    Jeff Landry, Attorney General, Richard L. Traina, Assistant Attorney General, Baton Rouge, Louisiana, Attorneys for Defendant/Appellant, State of Louisiana, through the Coastal Protection and Restoration Authority
    BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
   McDONALD, J.

In this case the State of Louisiana, through the Coastal Protection and Restoration Authority (CPRA), appeals a judgment against it and in favor of Bayou Canard Inc., a leaseholder of State water bottoms for oyster bedding purposes. The judgment declared that (1) the harvest efficiency ratio procedure, as defined by La. R.S. 49:951(6), was not properly adopted or promulgated pursuant to La. R.S. 49:953 ; (2) the harvest efficiency ratio was invalid and/or inapplicable as the harvest efficiency ratio procedure exceeds the statutory authority of the State through CPRA, and was adopted without substantial compliance with rulemaking procedures; and (3) CPRA exceeded its statutory authority by applying the harvest efficiency ratio procedure to the acquisition of Bayou Canard's marketable oysters under the Oyster Lease Acquisition and Compensation Program (OLACP). The judgment awarded Bayou Canard reasonable litigation expenses in the amount of $7,500.00, including costs, expenses, and attorney fees, pursuant to La. R.S. 49:965.1(D)(1). After a de novo review, we reverse.

FACTS AND PROCEDURAL HISTORY

Bayou Canard was a leaseholder of State water bottoms for oyster bedding purposes. Lease number 28549-01, dated December 20, 2000, covered 101 acres; lease number 32465-07, dated December 21, 2006, covered 30 acres; and lease number 34777-11, dated December 16, 2010, covered 733 acres. In 2015, CPRA determined that a portion of the water bottoms covered by each lease was located within the direct impact area of a coastal restoration project known as the Shell Island West Restoration Project. By three letters dated August 31, 2015, CPRA notified Bayou Canard that it was acquiring a portion of each lease and that Bayou Canard would be compensated for the acquisitions in accordance with OLACP, La. R.S. 56:432.1 and former La. Admin. Code, Title 43, Part I, §§ 850-869. The acquisitions were effective September 18, 2015. CPRA paid Bayou Canard a total of $174,205.31 to acquire approximately 10.15 percent of the total acreage of the leases.

Bayou Canard filed a petition for injunctive relief and declaratory judgment on October 29, 2015, naming as defendant the State, through CPRA. Bayou Canard maintained that the compensation paid by CPRA for the value of its marketable oysters was based on a harvest efficiency ratio, which resulted in a reduction of compensation. Bayou Canard further maintained that CPRA had generally and uniformly applied the harvest efficiency ratio procedure to every acquisition under OLACP since the inception of the OLACP program, and that, as a State agency engaged in rulemaking, CPRA was required to adopt its rules and regulations in compliance with the Administrative Procedure Act (APA), La. R.S. 49:214.6.2 and La. R.S. 49:951 -953. Bayou Canard asserted that CPRA did not follow the mandatory rulemaking procedure of the APA in adopting the harvest efficiency ratio procedure; thus, it was not a properly adopted rule or regulation of the CPRA. Further, Bayou Canard asserted that CPRA unlawfully reduced its compensation by defining the number of marketable oysters as both seed and market-size oysters as defined by the Louisiana Department of Wildlife and Fisheries (LAC 43:I(B)(855), although the definition of marketable oysters had no reference to the harvest efficiency ratio procedure,

Bayou Canard requested temporary and permanent injunctions enjoining CPRA from enforcing and applying the harvest efficiency ratio procedure; asked that the court issue a preliminary injunction requiring any and all other such acts as the court deemed appropriate for injunctive relief; asked that the court's order remain in full force and effect until such time as the trial court specifically ordered otherwise; requested an expedited trial on the merits and a permanent injunction; and any other equitable and general relief. Bayou Canard maintained that it need not demonstrate irreparable injury to obtain injunctive relief, as CPRA's actions were illegal.

Bayou Canard also requested a judgment declaring that: (1) the harvest efficiency ratio procedure is a rule as defined by La. R.S. 49:951(6) of the APA; (2) the harvest efficiency ratio procedure was not properly adopted or promulgated pursuant to La. R.S. 49:953 of the APA; (3) the harvest efficiency ratio procedure is invalid and inapplicable as it exceeds the statutory authority of CPRA and was adopted without substantial compliance with required rulemaking procedures; and (4) CPRA exceeded its statutory authority by applying the invalid and/or inapplicable harvest efficiency ratio procedure to the acquisition of Bayou Canard's marketable oysters under OLACP. Bayou Canard maintained that it was not required to exhaust any administrative remedies prior to seeking declaratory relief as the harvest efficiency ratio procedure is a rule as defined by La. R.S. 49:951(6) of the APA and was not properly adopted or promulgated in accordance therewith. Bayou Canard also requested an award of reasonable litigation expenses, including costs, expenses, and attorney fees, pursuant to La. R.S. 49:965.1(D)(1).

At a hearing on November 9, 2015, the trial court orally granted the preliminary injunction. Bayou Canard thereafter filed a motion for summary judgment on December 22, 2015, as to the declaratory relief it sought and an award of reasonable litigation expenses pursuant to La. R.S. 49:965.1(D)(1). The motion was heard on February 29, 2016, and denied. Judgment was signed on March 15, 2016. Bayou Canard filed an application for supervisory writs with this court, which was denied. Bayou Canard, Inc. v. State of Louisiana through the Coastal Protection and Restoration Authority , 2016-0404 (La. App. 1 Cir. 6/27/16) (unpublished writ action). Bayou Canard filed an application for supervisory and/or remedial writs with the Louisiana Supreme Court, which was also denied. Bayou Canard, Inc. v. State of Louisiana through the Coastal Protection and Restoration Authority, 2016-1415 (La. 11/15/16), 209 So.3d 786.

CPRA filed a motion for summary judgment on July 21, 2016, which was heard on September 12, 2016. The trial court did not rule on the motion. Bayou Canard filed a second motion for summary judgment on December 16, 2016 seeking the declaratory judgment asked for in its petition and $7,500.00 in litigation expenses.

On March 27, 2017, the trial court heard both CPRA's motion for summary judgment and Bayou Canard's second motion for summary judgment. The trial court granted Bayou Canard's motion for summary judgment and denied CPRA's motion for summary judgment. The trial court signed a judgment denying CPRA's motion for summary judgment on April 28, 2017. The trial court signed a judgment granting Bayou Canard's motion for summary judgment and awarding Bayou Canard $7,500.00 in reasonable litigation expenses on May 2, 2017. CPRA appealed both judgments.

CPRA makes the following assignments of error:

1. The Trial Court erred by allowing this matter to proceed before [Bayou Canard] exhausted its administrative remedies.
2. The Trial Court erred by granting [Bayou Canard's] motion for summary judgment because the [harvest efficiency ratio procedure] is not a rule under La. R.S. 49:951(6) and because genuine issues of material fact existed as to the relationship between [Bayou Canard] and the Louisiana Oyster Task Force and whether [Bayou Canard] was bound by that task force's recommendations.
3. The Trial Court erred by denying the State's motion for summary judgment because the terms of [Bayou Canard's] oyster leases barred [Bayou Canard] from bringing this lawsuit.
4. If granting [Bayou Canard's] motion for summary judgment was proper, the Trial Court erred in awarding [Bayou Canard] attorney fees pursuant to La. R.S. 49:965.1.

THE STANDARD OF REVIEW

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880, 882-883.

A denial of a motion for summary judgment in whole or in part is an interlocutory judgment that is not appealable. Ascension School Employees Credit Union v. Provost Salter Harper & Alford, L.L.C., 2006-0992 (La. App. 1 Cir. 3/23/07), 960 So.2d 939, 940. However, a review of the trial court's denial of CPRA's cross motion for summary judgment is appropriate because the issues involved are identical to those presented by the grant of Bayou Canard's motion for summary judgment. See Board of Sup'rs. of Louisiana State University v. Louisiana Agr. Finance Authority, 2007-0107 (La. App. 1 Cir. 2/08/08), 984 So.2d 72, 78-79, n. 1.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in light of the substantive law applicable to the case. Pumphrey v. Harris, 2012-0405 (La. App. 1 Cir. 11/2/12), 111 So.3d 86, 89.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

In these two related assignments of error, CPRA asserts that the trial court erred by allowing this matter to proceed before Bayou Canard exhausted its administrative remedies and that the harvest efficiency ratio procedure is not a rule under La. R.S. 49:951(6).

Under the OLACP, an oyster lessee may challenge the propriety of the acquisition of its lease or the compensation offered by CPRA through an administrative hearing. See La. R.S. 56:432.1(C). Such challenges are submitted to an administrative law judge, who issues a final decision to the lessee. See La. R.S. 56:432.1(C)(2), and (3). The lessee is entitled to seek review of the final decision of the administrative law judge. La. R.S. 56:432.1D. A lessee must exhaust its administrative remedies before commencing suit, as follows:

Any petition for judicial review pursuant to this Subsection must be filed with the Nineteenth Judicial District Court within sixty days after issuance of the final decision of the administrative law judge. No petition for judicial review may be filed, and any such petition is premature, unless adjudication has been timely sought and all administrative remedies have been exhausted. The petition shall be served upon the executive director of the [CPRA] and all parties of record.

La. R.S. 56:432.1(D)(1).

Generally, the person aggrieved by an administrative action must exhaust all such administrative remedies before being entitled to judicial review. Girouard v. State Through Dep't of Educ., 96-1076 (La. App. 1 Cir. 5/9/97), 694 So.2d 1153, 1155.

In response, Bayou Canard asserts that La. R.S. 56:432.1D does not apply herein, as they are challenging the validity of a rule. Louisiana Revised Statute 49:963 of the APA provides that:

A. (1) The validity or applicability of a rule may be determined in an action for declaratory judgment in the district court of the parish in which the agency is located.
(2) The agency shall be made a party to the action.
B. (1) If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court.
(2) The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
C. The court shall declare the rule invalid or inapplicable if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was adopted without substantial compliance with required rulemaking procedures.
D. An action for a declaratory judgment under this Section may be brought only after the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question and only upon a showing that review of the validity and applicability of the rule in conjunction with review of a final agency decision in a contested adjudicated case would not provide an adequate remedy and would inflict irreparable injury.
E. Upon a determination by the court that any statement, guide, requirement, circular, directive, explanation, interpretation, guideline, or similar measure constitutes a rule as defined by R.S. 49:951(6) and that such measure has not been properly adopted and promulgated pursuant to this Chapter, the court shall declare the measure invalid and inapplicable. It shall not be necessary that all administrative remedies be exhausted.

Thus, we must first determine whether the harvest efficiency ratio procedure is a rule as defined by La. R.S. 49:951(6). Louisiana Revised Statute 49:951 provides:

(6) "Rule" means each agency statement, guide, or requirement for conduct or action, exclusive of those regulating only the internal management of the agency and those purporting to adopt, increase, or decrease any fees imposed on the affairs, actions, or persons regulated by the agency, which has general applicability and the effect of implementing or interpreting substantive law or policy, or which prescribes the procedure or practice requirements of the agency. "Rule" includes, but is not limited to, any provision for fines, prices or penalties, the attainment or loss of preferential status, and the criteria or qualifications for licensure or certification by an agency. A rule may be of general applicability even though it may not apply to the entire state, provided its form is general and it is capable of being applied to every member of an identifiable class. The term includes the amendment or repeal of an existing rule but does not include declaratory rulings or orders or any fees.

CPRA asserts that the harvest efficiency ratio procedure is not a rule, but rather, an element of the application of the mandatory regulatory factors. CPRA contends that the harvest efficiency ratio procedure is not applied to reduce the compensation due to a lessee; rather, the harvest efficiency ratio procedure is part of the process used to determine the value of the non-removable marketable oysters on the affected acreage.

Bayou Canard maintains that the harvest efficiency ratio procedure is undisputedly a rule under the APA as CPRA generally and uniformly applies the harvest efficiency ratio procedure to every acquisition under OLACP to determine the number of marketable oysters and compensation owed to the leaseholder by law. Bayou Canard cites Star Enterprise v. State, 95-1980 (La. App. 1 Cir. 6/28/96), 676 So.2d 827, writ denied, 96-1983 (La. 3/14/97), 689 So.2d 1383, in support of its position. In that case, three oil refineries sought injunctive relief against enforcement of a new taxation formula adopted by the Department of Revenue via letter. This court found that the new method of valuation was clearly a rule under the APA because it contained a directive to the affected taxpayers to disregard the previous method of valuing refinery gas and coke-on-catalyst, the method was applied generally to all manufacturers, and the method was an interpretation and implementation of a substantive law. This court found that the Department of Revenue's valuation method was a rule unlawfully adopted due to non-compliance with the APA. Star Enterprise, 676 So.2d at 832.

Bayou Canard maintains that similarly, CPRA uses the harvest efficiency ratio procedure as its method to determine a leaseholder's marketable oysters in implementing and paying the compensation owed under OLACP, thus it is an agency rule, which must be adopted pursuant to the APA.

Bayou Canard also cites Women's and Children's Hosp. v. State, Dept. of Health and Hospitals, 2007-1157 (La. App. 1 Cir. 2/8/08), 984 So.2d 760, writ granted, 2008-0946 (La. 6/27/08), 983 So.2d 1287, affirmed by 2008-946 (La. 1/21/09), 2 So.3d 397, in support of its position. In that case, this court considered whether a new Medicaid reimbursement rate methodology was a rule under the APA. This court found that because the Department of Health and Hospitals used rate-setting methodology to calculate payments owed to applicable hospitals, it was a rule that affected the rights and obligations of parties regarding Medicaid reimbursement payments. Women's and Children's Hospital, 984 So.2d at 771.

CPRA notes that it has adopted a rule, La. Admin. Code, Title 43, Part VII, § 311 promulgated December 2015 [formerly La. Admin. Code, Title 43, Part I, § 861 promulgated November 2006]:

A. The secretary shall determine the compensation for any affected acreage to be acquired as follows:
*****
2. If the department provides a time period of less than one year between issuance of a notice of acquisition pursuant to § 313 and the effective date of acquisition, the compensation for the affected acreage to be acquired shall be equal to the fair market value of the affected acreage to be acquired as determined by the secretary in accordance with § 309 plus the value of such non-removable marketable oysters on the affected acreage, if any, as determined by the department, based upon reasonably confirmable data. The determination of value shall take into account the number of sacks of marketable oysters per acre, suitable acreage, natural mortality, current market price, and harvest cost.

CPRA maintains that the harvest efficiency ratio procedure is an appropriate method for applying this rule. The harvest efficiency ratio procedure, it argues, is not part of the formula in the rules and regulations, it is a factor that it applied to the value reached through the rules and regulations.

Nonetheless, after de novo consideration, we find that the harvest efficiency ratio procedure is more than an explanation or interpretation of the rule. Rather, the harvest efficiency ratio procedure provides universal instruction to CPRA and it has the substantive effect of establishing the rights and obligations of the parties regarding reimbursement payments for oyster bed acquisition. Thus, the harvest efficiency ratio procedure is a rule that is unenforceable because it was not properly promulgated and adopted. See Star Enterprise , 676 So.2d at 832 ; Women's and Children's Hospital, 984 So.2d at 771. Accordingly, we find no merit to these assignments of error.

ASSIGNMENT OF ERROR NO. 3

In this assignment of error, CPRA asserts that the terms of Bayou Canard's oyster leases barred Bayou Canard from bringing this lawsuit.

Each lease contains a "Coastal Wetlands Restoration Advisory" clause which provides:

[T]he State as Lessor hereby conveys to Lessee a limited interest in the water bottom which is described in this lease, subject to the conditions that: (1) this lease is subservient to the State's past, present or future coastal restoration projects; (2) the State's coastal restoration projects may cause adverse effects in the area of this lease; and, (3) the State is only issuing this lease based upon the mutual understanding of both the State and Lessee that Lessee's property interest conveyed by this lease shall not include any right whatsoever to make claims against the State as a result of freshwater diversion or any other coastal restoration projects....

Further, the leases contain an "Allocation of Risk and Liability, And Indemnification" clause which provides in part:

Lessee shall assume all liability and risk of loss, and agrees that this lease is subservient to all past, present or future activities as described above. Lessee also agrees to indemnify and hold ... the State of Louisiana, the Wildlife and Fisheries Commission, the United States, and any agency, agent, contractor, or employee thereof, harmless from and for, all loss, damage, costs and/or expense in any way associated with this oyster lease and the oysters, cultch, reefs and beds located therein, including any loss, sustained by the Lessee ... arising out of, connected with, incident to, or directly or indirectly resulting from or related to ... any other action taken for the purpose of coastal protection, conservation, or restoration undertaken by the State of Louisiana, the Wildlife and Fisheries Commission, political subdivisions of the state, the United States, and any agency, agent, contractor, or employee thereof. Damages include, but are not limited to, oyster mortality, oyster disease, damaged oyster beds or decreased oyster production, loss of revenue and/or loss of income....

A lease is a contract. La. C.C. art. 2668. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. If the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046.

This lawsuit results from a coastal restoration project. The language of the lease eliminates any right whatsoever of Bayou Canard to make any claims against CPRA as a result of the Shell Island West Restoration Project. That clear and explicit, broad language extends to all claims against CPRA by an oyster lessee resulting from a coastal restoration project, which includes the claims brought by Bayou Canard herein. See Avenal v. State, 2003-3521 (La. 10/19/04), 886 So.2d 1085, wherein the court found that nearly identical contract language validly released the State from liability to oyster leaseholders as a result of a coastal diversion project.

Thus, finding merit to this assignment of error, we reverse the summary judgment granted in favor of Bayou Canard, and we reverse the denial of the motion for summary judgment filed by CPRA, thereby granting summary judgment in favor of CPRA and against Bayou Canard.

ASSIGNMENT OF ERROR NO. 4

In this assignment of error, CPRA asserts that the trial court erred in awarding Bayou Canard attorney fees pursuant to La. R.S. 49:965.1. As we have reversed the summary judgment in favor of Bayou Canard, and granted summary judgment in favor of CPRA, we also reverse the award of attorney fees to Bayou Canard.

CONCLUSION

Therefore, for the foregoing reasons, the trial court judgments are reversed. Summary judgment is rendered in favor of the State of Louisiana, through the Coastal Protection and Restoration Authority, and against Bayou Canard, Inc., dismissing this suit. Costs of this appeal are assessed against Bayou Canard, Inc.

JUDGMENTS REVERSED; SUMMARY JUDGMENT GRANTED.

Whipple, C.J. concurs and assigns reasons.

Chutz, J. concurs (by JMM)

WHIPPLE, C.J., CONCURRING.

The majority concludes that Bayou Canard has no right whatsoever to make any claims against the State, citing and primarily relying on Avenal, as well as the lease provisions. Unlike the claims asserted in Avenal, I do not view this case as an oyster damage claim, but instead as one involving a determination of compensation due and asserted pursuant to LSA-R.S. 56:432.1, which sets forth a scheme for compensating a lease holder for leased property being reclaimed. Thus, given the language in the lease before us, which provision the State was authorized to include, I find that this language in the lease precludes even the statutory claim. Accordingly, I agree with the result reached by the majority.

      We note that the language of Lease 28549-01 differs slightly in that it states that it holds harmless "the State of Louisiana and/or the United States, their officials, representatives, employees, agencies, departments, and/or commissions." Also, the purpose permitting the hold harmless is stated in lease number 28549-01 as "management, preservation, enhancement, creation, or restoration of coastal wetlands and from impacts associated with projects authorized and defined under the state's Coastal Restoration Wetlands Conservation and Restoration Plan undertaken by the State and/or the United States, their officials, agents, representatives, employees, agencies, departments, and/or commissions, for the benefit of the people of the State of Louisiana."

      In Avenal, oyster fishermen holding oyster leases in the Breton Sound area claimed they suffered a compensable taking under the Louisiana Constitution as a result of a coastal restoration project. The Louisiana Supreme Court reversed the lower courts' judgments awarding compensation, and held that the vast majority of the oyster fishermen were not entitled to compensation because their leases contained clauses holding the State harmless from any loss or damage resulting from the coastal diversion project. The Court further found that the claims of the oyster fishermen whose leases did not contain hold harmless clauses were prescribed. Avenal , 886 So.2d at 1088.


author: GUIDRY, J.

text:
    Joe L. BRIDGES, III, Jordan M. Bridges, and Branden J. Herring v. BATON ROUGE POLICE DEPARTMENT, City of Baton Rouge; Donald Dewayne White, (in his Official Capacity as Chief of Police of the Baton Rouge Police Department), Kenneth Clark (Individually and in his Official Capacity as an Officer for the Baton Rouge Police Department), Steven Woodring (Individually and in his Official Capacity as an Officer for the Baton Rouge Police Department), Dustin Johnson (Individually and in his Official Capacity as an Officer for the Baton Rouge Police Department), and XYZ Insurance Company
    NUMBER 2017 CA 0710
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MAY 17, 2011
    Clarence Roby, Jr., Stephanie Bridges, Harry Rosenberg, New Orleans, LA, Counsel for Plaintiffs/Appellants, Joe L. Bridges III, Jordan M. Bridges, and Branden J. Herring
    A. Gregory Rome, Special Assistant Parish Attorney, Tedrick K. Knightshead, Baton Rouge, LA, Counsel for Defendant/Appellee, City of Baton Rouge/Parish of East Baton Rouge
    BEFORE: WHIPPLE, C.J., GUIDRY, PETTIGREW, CRAIN, AND CHUTZ, JJ.
   GUIDRY, J.

Plaintiffs/Appellants, Joe Bridges III, Jordan M. Bridges, and Branden J. Herring, appeal from a February 22, 2017 judgment denying their motion to set aside/vacate the trial court's order dismissing plaintiffs' petition for damages and from the trial court's March 17, 2017 order denying their motion for new trial. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On July 20, 2012, plaintiffs filed a petition for damages arising out of a July 30, 2011 arrest. Plaintiffs' petition names as defendants: the Baton Rouge Police Department; the City of Baton Rouge; Donald Dewayne White, in his official capacity as Chief of Police of the Baton Rouge Police Department; Kenneth Clark, individually and in his official capacity as an officer for the Baton Rouge Police Department; Steven Woodring, individually and in his official capacity as an officer for the Baton Rouge Police Department; and Dustin Johnson, individually and in his official capacity as an officer for the Baton Rouge Police Department. James L. Hilburn, Senior Special Assistant Parish Attorney, subsequently filed an answer on behalf of the City of Baton Rouge, Chief White, Clark, Woodring, and Johnson.

Thereafter, on May 14, 2014, Tedrick K. Knightshead, Special Assistant Parish Attorney, filed a motion to enroll as counsel of record, asking the court to remove Hilburn, since he was no longer an employee of the parish attorney's office. The trial court signed an order on May 21, 2014, removing Hilburn as counsel of record for defendants and entering Knightshead as counsel of record.

On July 19, 2016, A. Gregory Rome, Special Assistant Parish Attorney, filed on behalf of the named defendants an ex parte motion to dismiss plaintiffs' petition on grounds of abandonment, asserting that more than three years had elapsed since either party had taken an action toward the defense or prosecution of the matter. In connection with their motion, defendants submitted a three-year certificate from the Nineteenth Judicial District Clerk of Court, certifying that no pleadings had been filed by either party since the May 14, 2014 motion to enroll. In the accompanying memorandum, defendants asserted that the last action taken by either party was defendants' written discovery propounded on plaintiffs on October 2, 2012, to which plaintiffs had not responded. Defendants attached to the memorandum an affidavit from Rome stating that he personally examined the suit record and defendants' file and that no action toward either the defense or prosecution of the matter had been taken by either party nor had there been any formal discovery by any party for a period in excess of three years. The trial court subsequently signed an order on July 27, 2016, dismissing the plaintiffs' petition with prejudice, at plaintiffs' cost, pursuant to La. C.C.P. art. 561.

Thereafter, on August 22, 2016, plaintiffs filed a motion to set aside/vacate the order dismissing plaintiffs' petition for damages (motion to set aside), asserting that on March 18, 2014, they submitted formal discovery to defendants, namely interrogatories and requests for production of documents. Plaintiffs asserted that discovery is a step in the prosecution, and therefore, plaintiffs did not fail to take a step in the prosecution for an uninterrupted period of three years and abandonment is inappropriate. Plaintiffs attached as exhibits to their motion: a cover letter from the office of plaintiffs' counsel, Clarence Roby, Jr., addressed to defendants' counsel, Hilburn, and dated March 18, 2014; interrogatories and requests for production directed to defendants Johnson and Woodring; and a certificate of service signed by Roby stating that the interrogatories and requests for production were mailed to counsel for all parties on March 18, 2014. Defendants did not file a response or opposition to plaintiffs' motion.

The trial court held a hearing on plaintiffs' motion on February 6, 2017. At the hearing, defendants presented argument opposing plaintiffs' motion and introduced documentary evidence and the testimony of two witnesses. At the conclusion of the hearing, the trial court denied plaintiffs motion to set aside, finding that plaintiffs had failed to present any evidence, either by way of affidavit or witness testimony, authenticating that the March 18, 2014 discovery was sent to the plaintiffs. The trial court subsequently signed a judgment on February 22, 2017, denying plaintiffs' motion and dismissing plaintiffs' petition for damages as abandoned.

On March 15, 2017, plaintiffs filed a motion for new trial and/or reconsideration, asserting that a new trial should be granted based on peremptory and discretionary grounds. The trial court signed an order denying plaintiffs' motion on March 17, 2017.

Plaintiffs now appeal from the trial court's February 22, 2017 judgment and March 17, 2017 order.

DISCUSSION

Motion to Set Aside

On appeal, plaintiffs first contend that the trial court erred in denying their motion to set aside, when plaintiffs presented evidence that discovery requests were served on counsel for defendants.

Louisiana Code of Civil Procedure article 561 provides, in pertinent part:

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years[.]
* * *
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
* * *
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

As such, La. C.C.P. art. 561 sets forth three requirements for avoiding dismissal of an action by the trial court on the ground of abandonment: (1) that a party take some "step" in the prosecution or defense of an action; (2) that the step be taken in the proceeding and, with the exception of formal discovery, appears in the record of the suit; and (3) that the step be taken within three years of the last step taken by either party. Clark v. State Farm Mutual Automobile Insurance Company, 00-3010, pp. 5-6 (La. 5/15/01), 785 So.2d 779, 784. A "step" in the prosecution or defense is defined as taking formal action before the court, which is intended to hasten the matter to judgment, or the taking of a deposition with or without formal notice. Clark, 00-3010 at p. 6, 785 So.2d at 784. Pursuant to La. C.C.P. art. 561(B), "[a]ny formal discovery as authorized by this Code and served on all parties whether or not filed of record... shall be deemed to be a step in the prosecution or defense of an action."

Whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to the manifest error standard of review. Brown v. Kidney and Hypertension Associates. L.L.P., 08-0919, p. 7 (La. App. 1st Cir. 1/12/09), 5 So.3d 258, 264.

As previously noted, the trial court signed an ex parte order of dismissal on the basis of defense counsel's affidavit pursuant to La. C.C.P. art. 561(A)(3). The plaintiffs responded by filing a motion to set aside pursuant to La. C.C.P. art. 561(A)(4). As such, the burden was on plaintiffs to prove, by extrinsic evidence, a permissible cause outside of the record that prevented the accrual of the three-year abandonment period. That is to say, plaintiffs were required to present evidence for the record sufficient to set aside the trial court's prior dismissal. Lyons v. Dohman, 07-0053, p. 5 (La. App. 3rd Cir. 5/30/07), 958 So.2d 771, 774.

In filing their motion to set aside, plaintiffs attached as exhibits to their motion: a cover letter from the office of plaintiffs' counsel, Roby, addressed to defendants' counsel, Hilburn, and dated March 18, 2014; interrogatories and requests for production directed to defendants Johnson and Woodring; and a certificate of service signed by Roby stating that the interrogatories and requests for production were mailed to counsel for all parties on March 18, 2014. The trial court considered these exhibits at the hearing on the motion. However, plaintiffs presented no other evidence authenticating the certificate of service or otherwise supporting that the discovery was "served" on all defendants. The Louisiana Supreme Court has held that a photocopy of a certificate of service attached to a discovery request that is not properly authenticated or supported by testimony is not adequate proof that service of discovery was made on all parties for purposes of interrupting abandonment under La. C.C.P. art. 561. Dunn v. City of Kenner, 09-1108 (La. 9/18/09), 17 So.3d 400 ; see also Lewis v. Digital Cable and Communications North, 15-345, p. 9 (La. App. 5th Cir. 11/19/15), 179 So.3d 840, 845.

Plaintiffs assert on appeal that the testimony of Stephanie Bridges, co-counsel for plaintiffs, established that discovery was served on defendants prior to expiration of the three-year abandonment period. Bridges' testimony was offered at the hearing by defendants. Defense counsel asked Bridges if Roby sent any of the March 18, 2014 discovery documents to him prior to Roby filing the motion to set aside. Bridges responded by stating "I know he sent it to Mr. James Hilburn." Bridges' testimony, while offered by defendants, was uncontroverted.

Dismissal of a lawsuit is the harshest of remedies, and the law favors and justice requires that an action be maintained whenever possible so that the aggrieved party has his day in court to which he is entitled. Brown, 08-0919 at p. 8, 5 So.3d at 265. Furthermore, the supreme court has long recognized that La. C.C.P. art. 561 is to be liberally construed in favor of maintaining a plaintiff's suit. See Clark, 00-3010 at p. 8, 785 So.2d at 785. With these guiding principles in mind, we find that given the uncontroverted testimony of plaintiffs' co-counsel, Bridges, that the discovery was sent to then-counsel for defendants, the trial court manifestly erred in finding that plaintiffs failed to present supporting testimony that the discovery was sent to defendants. See Dunn, 17 So.3d at 400.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court and remand this matter for further proceedings consistent with this opinion. All costs of this appeal in the amount of $927.00 are assessed to defendant/appellee, the City of Baton Rouge.

REVERSED AND REMANDED.

Crain, J. dissents and assigns reasons.

CRAIN, J., dissents.

I believe the trial court erred in considering attachments to pleadings not properly offered and introduced into evidence, and those attachments should not be considered on appeal. See Bank v. Rayford, 17-1244 (La. App. 1 Cir. 3/29/18), 247 So. 3d 733, ---- (2018 WL 1559815). Without any evidence proving a permissible cause outside the record prevented accrual of the abandonment period, plaintiffs failed to carry their burden of proof. Even if evidence presented by the defendants in opposition to plaintiffs' motion is properly considered, I find no manifest error in determining a conclusory statement in an affidavit that affiant knows discovery was sent is insufficient proof that discovery was served so as to prevent abandonment. See La. Code Civ. Pro. art. 561 ; Dunn v. City of Kenner, 09-1108 (La. 9/18/09), 17 So.3d 400 ; Hardy v. A. Wilbert's Sons, L.L.C., 06-1093 (La. App. 1 Cir. 9/19/07), 970 So. 2d 1063, 1066 n.2. I would affirm the trial court's judgment.

      There is no evidence in the record that these exhibits were formally offered and admitted into evidence by plaintiffs at the hearing on the motion to set aside. However, the trial court noted during the hearing that it was "going to accept [plaintiffs'] motion and attachments for purposes of determining [the motion to set aside]" and that it "attempted to assist plaintiff[s] by accepting into evidence the exhibits to their motion to set aside."


author: McCLENDON, J.

text:
    Eryon LUKE v. CPLACE FOREST PARK SNF, LLC
    2017 CA 0864
    Court of Appeal of Louisiana, First Circuit.
    MAY 18, 2018
    Victor J. Woods, Jr., Addis, Louisiana, Counsel for Plaintiff/Appellant Eryon Luke
    Christine S. Keenan, Melissa M. Samuel, Baton Rouge, LA, Counsel for Defendant/Appellees Traditions Senior Management, Inc. and CPlace Forest Park SNF, LLC, d/b/a Nottingham Regional Rehab Center
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McCLENDON, J.

Appellant seeks review of a trial court judgment sustaining the appellee's peremptory exception raising the objection of prescription. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

On May 15, 2013, Eryon Luke (plaintiff) filed suit against her former employer, CPIace Forest Park SNF, LLC, d/b/a Nottingham Regional Rehab Center (Nottingham). She alleged, among other things, that Nottingham terminated her due to her pregnancy, in violation of both federal and state law. Plaintiff also alleged that Nottingham violated LSA-R.S. 23:342(4), concerning unlawful employment practices, by refusing to temporarily transfer her to a less strenuous or hazardous position for the duration of her pregnancy. Following removal to federal court and a complex procedural history resulting in dismissal of plaintiff's federal claims, plaintiff's state law claims were remanded to state district court on November 4, 2014.

On November 28, 2016, plaintiff filed a Supplemental and Amended Petition, seeking to add Traditions Senior Management, Inc. (Traditions) as an additional defendant. Plaintiff alleged that Traditions was also her employer and that both Traditions and Nottingham had violated the Louisiana Employment Discrimination Law ("LEDL") by failing to accommodate plaintiff during her pregnancy. Plaintiff also reiterated the prayer of her original petition and sought judgment against the defendants jointly and in solido.

On January 10, 2017, Traditions filed a peremptory exception raising the objection of prescription. Traditions noted that claims brought under the LEDL were subject to a one-year prescriptive period. See LSA-R.S. 23:303(D). Because plaintiff had been terminated on May 24, 2012, Traditions contended that plaintiff's claims against it prescribed no later than May 24, 2013. As such, Traditions asserted that plaintiff's amended petition filed on November 28, 2016 was untimely. In opposition, plaintiff asserted that her claims against Traditions related back to the filing of the original petition since Traditions was aware of plaintiff's claims and of the underlying litigation, given its close working relationship with Nottingham.

Following a hearing, the trial court sustained the exception raising the objection of prescription and dismissed plaintiff's claims against Traditions with prejudice. Plaintiff has appealed, seeking review of the trial court's judgment granting Traditions' exception of prescription.

DISCUSSION

As a general rule, prescription statutes "are strictly construed against prescription and in favor of the obligation sought to be extinguished." Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105 (La. 3/15/11), 62 So.3d 721, 726. Ordinarily, the party urging prescription bears the burden of proof at trial of the exception; however, if the petition is prescribed on its face, the burden shifts to the plaintiff to show the action is not prescribed. Taranto, 62 So.3d at 726.

We note that both the parties and the trial court focused on whether plaintiff's amended petition adding Traditions as a defendant related back to her timely filed petition against Nottingham. See LSA-C.C.P. art. 1153. However, if Nottingham and Traditions are either joint tortfeasors or solidary obligors then a timely filed suit against one would interrupt prescription against the other and the discussion of relation back under LSA-C.C.P. art. 1153 would be moot See McKenzie v. Imperial Fire and Cas. Ins. Co., 12-1648 (La.App. 1 Cir. 7/30/13), 122 So.3d 42, 53 n.13 ("Once a plaintiff establishes that a joint tortfeasor has been timely sued, consideration of the concept of relating back under La. C.C.P. art. 1153 to interrupt prescription is not necessary."); see also Wheat v. Nievar, 07-0680 (La.App. 1 Cir. 2/8/08), 984 So.2d 773, 776 and Perkins v. Willie, 03-0126 (La.App. 1 Cir. 4/2/04), 878 So.2d 574, 578.

The interruption of prescription against one solidary obligor is effective against all solidary obligors and their heirs. LSA-C.C. arts. 1799 and 3503. If such liability is not solidary, then "liability for damages caused by two or more persons shall be a joint and divisible obligation." LSA-C.C. art. 2324(B). "Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors." LSA-C.C. art. 2324(C).

In her supplemental and amending petition, the plaintiff alleged that the defendants were liable "jointly and in solido." See LSA-C.C. art. 2324. Also, in opposition to Traditions' exception raising the objection of prescription, the plaintiff introduced the deposition of Donna Duplantis, Traditions' Regional Director of Human Resources. Ms. Duplantis testified that she "oversaw" the Nottingham facility and that her job duties included approving disciplinary actions. Ms. Duplantis indicated that she, along with supervisory employees of both Nottingham and Traditions, made the decision that there were no accommodations that Nottingham could make that would enable plaintiff to continue in her position. Additionally, Ms. Duplantis testified:

When we realized Ms. Luke would not be able to perform the duties of this job or any job that we had available without a whole other person being paid to work [alongside] her, which we felt was-would be an unreasonable accommodation, we placed her and-and gave her notice in mail and I think also verbally that we would place her on leave in accordance with the Louisiana pregnancy statute, which gives up to four months if there is a problem pregnancy.
* * *
The leave was up after-we gave her up to the four months. And she was still unable to perform the job duties for the job for which she was hired. I-I don't know if she called Rachael Carcamo [with Nottingham] or if Rachael just came to me on her own as a result of reviewing the payroll that-I don't remember why. But after the four months was up, Rachael contacted me and said should we knock her off of payroll, should we terminate her employment. And I did-I believe I contacted Heather McKamey [Traditions' Vice President of Human Resources] directly because I felt that-I did feel like she should be terminated off of the payroll. There was-you know, we had complied with the statute and there was no reason to keep her on a list, basically.
And I did contact-I don't remember if it was e-mail or by phone, but I did contact Ms. McKamey, who agreed, and we terminated her employment through a letter.

Based on the allegations in both petitions and considering the foregoing testimony, we conclude that the timely filed suit against Nottingham, a joint tortfeasor with Traditions, interrupted prescription against Traditions. See LSA-C.C. arts. 2324(C) and 3462 ; see also McKenzie, 122 So.3d at 49. Accordingly, we reverse the judgment of the trial court in this regard and overrule Traditions' exception of prescription.

In light of our conclusion, consideration of the concept of relation back under LSA-C.C.P. art. 1153 is moot. See McKenzie, 122 So.3d at 53 n.13. Moreover, given our ruling, we pretermit plaintiff's second assignment of error concerning whether the trial court erred in failing to allow her the opportunity to present oral argument at the exception hearing.

CONCLUSION

For the foregoing reasons, we reverse the trial court's May 26, 2017 judgment sustaining Traditions' peremptory exception raising the objection of prescription and dismissing plaintiff's claims against Traditions with prejudice. We overrule the exception, and we remand this matter to the trial court for further proceedings. Costs of this appeal are assessed against appellee, Traditions Senior Management, Inc.

REVERSED AND REMANDED.

      Plaintiff asserted that defendant specifically violated the following: Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) ; the Family and Medical Leave Act of 1993, 29 U.S.C. 2601, et seq., 29 C.F.R. Part 825; the Louisiana Employment Discrimination Law, LSA-R.S. 23:301, et seq.

      Louisiana Revised Statutes 23:342 provides, in pertinent part:
      It shall be an unlawful employment practice unless based upon a bona fide occupational qualification:
      * * *
      (4) For any employer to refuse to temporarily transfer a pregnant female employee to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where such transfer can be reasonably accommodated, provided, however, that no employer shall be required by this Part to create additional employment which the employer would not otherwise have created, nor shall such employer be required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job.

      Plaintiff has appealed the federal district court's dismissal of her federal claims.

      Under Article 1153, "when the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth ... in the original pleading, the amendment relates back to the date of filing the original pleading." In Ray v. Alexandria Mall, 434 So.2d 1083, 1086-87 (La. 1983), the Louisiana Supreme Court established the following criteria for determining whether article 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition:
      (1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
      (2) The purported substitute [or added] defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
      (3) The purported substitute [or added] defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
      (4) The purported substitute [or added] defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

      Louisiana Civil Code article 2324 provides:
      A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
      B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.
      C. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

      Ms. Duplantis indicated that the decision was discussed among herself; Mr. Roy Bridges, Traditions' Chief Operating Officer; Heather McKamey, Traditions' Vice President of Human Resources; Rachael Carcamo, a Nottingham employee; and Nottingham's Director of Nursing.

      Louisiana Civil Code article 3462 provides, in part:
      Prescription is interrupted ... when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

      Our finding regarding prescription in no way establishes or predicts the plaintiff's ability to prove that any actions by Traditions or Nottingham actually caused or contributed to the plaintiff's alleged damages.


text:
    Mary E. ROPER v. John Chandler LOUPE and the Consolidated Governing Body of the City of Baton Rouge and the Parish of East Baton Rouge
    NUMBER 2017 CA 1239
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MAY 18, 2018
    Jeffrey K. Cody, Baton Rouge, LA, Counsel for Plaintiff/Appellant Mary E. Roper
    Murphy J. Foster, III, Jacob E. Roussel, Baton Rouge, LA, Counsel for Defendants/Appellees John Chandler Loupe and the Consolidated Governing Body of the City of Baton Rouge and Parish of East Baton Rouge
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

A discharged employee appeals a trial court's award of attorney fees and costs to the prevailing litigants on a special motion to strike in the employee's unsuccessful suit for defamation. For the following reasons, we amend the judgment appealed.

FACTS AND PROCEDURAL HISTORY

In April 2015, Mary E. Roper filed a 25-page petition for damages against John Chandler Loupe and the consolidated governing body of the City of Baton Rouge and the Parish of East Baton Rouge (City-Parish), alleging that Loupe had made numerous false and defamatory statements about her and that members of the City-Parish with the ability to prevent such alleged defamation failed to do so. Loupe and the City-Parish (collectively defendants) answered Roper's petition, raising several affirmative defenses and denying any liability for defamation. The defendants later filed a special motion to strike pursuant to La. C.C.P. art. 971. Following a hearing, the trial court granted the defendants' special motion to strike and dismissed all of Roper's claims with prejudice in a judgment signed July 29, 2015.

On December 21, 2016, the defendants filed a motion to fix costs and for an award of those costs and attorney fees. Following a hearing, the trial court rendered judgment in favor of the defendants, ordering Roper to pay $34,643.73 in costs and attorney fees. Roper appeals that March 28, 2017 judgment, raising four assignments of error.

DISCUSSION

In her first assignment of error, Roper contends that the trial court abused its discretion in awarding attorney fees and costs to the defendants because "[t]here was no determination that [her] lawsuit was baseless or meritless [n]or could the suit have been instituted to chill speech [that] had already occurred." This argument appears to be premised on the intent of the legislature in enacting La. C.C.P. art. 971, which intent is expressed in the enacting legislation as:

The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly.

1999 La. Acts, No. 734, § 2. Additionally, the courts of this state have further found the legislature's purpose in enacting Article 971 was "to screen out meritless claims pursued to chill one's constitutional rights under the First Amendment of the United States Constitution to freedom of speech and press." See e.g. In re Succession of Carroll, 46,327, p. 11 (La. App. 2d Cir. 7/20/11), 72 So.3d 384, 390-91, writ not considered, 11-1844 (La. 11/4/11), 75 So.3d 912 (quoting Melius v. Keiffer, 07-0189, p. 2 (La. App. 4th Cir. 3/12/08), 980 So.2d 167, 170, writ not considered, 08-1039 (La. 8/29/08), 989 So.2d 90 and Lee v. Pennington, 02-0381, p. 4 (La. App. 4th Cir. 10/16/02), 830 So.2d 1037, 1041 ).

While it has been held that the rules of statutory construction are designed to ascertain and enforce the intent of the legislature and that the paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons that prompted the legislature to enact the law, the starting point in the interpretation of any statute remains the language of the statute itself. Red Stick Studio Development, L.L.C. v. State ex rel. Department of Economic Development, 10-0193, pp. 9-10 (La. 1/19/11), 56 So.3d 181, 187. Thus, when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. Red Stick Studio Development, L.L.C., 10-0193 at p. 10, 56 So.3d at 187-88.

In this case, La. C.C.P. art. 971(B) unambiguously provides that "a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs." The use of the mandatory term "shall" in the article leaves no room for discretion. See Bennett v. Laperouse and Son, Ltd., 09-1099, p. 5 (La. App. 1st Cir. 2/12/10), 35 So.3d 364, 367-68 ; see also La. C.C.P. art. 5053. As it has already been determined by final judgment that the defendants were the prevailing party on the special motion to strike, we find no abuse of the trial court's discretion in awarding attorney fees and costs to the defendants.

In her second assignment of error, Roper contends that the amount of attorney fees and costs awarded by the trial court was "exorbitant" and thus unreasonable and an abuse of the trial court's discretion. In particular, she asserts that the award of reasonable attorney fees does not necessarily equate to an award of the actual attorney fees incurred. This court, however, has previously held that an award of attorney fees and costs to a prevailing party on a special motion to strike consistent with the affidavit submitted by the defendant establishing the amount of legal work performed and the costs associated therewith was proper and not an abuse of the trial court's discretion upon review. See Davis v. Benton, 03-0851, p. 10 (La. App. 1st Cir. 2/23/04), 874 So.2d 185, 191. Thus, we find no abuse of the trial court's discretion in similarly awarding attorney fees and costs in this matter.

In her third assignment of error, Roper alleges billing errors in two of the invoices attached to the affidavit certifying the legal work performed by defendants' counsel and the costs associated therewith.

The first invoice identified by Roper contains an obvious typographical error, as the body of the invoice shows a charge of $1,831.74, which is the same amount as shown in the itemized statement attached to the invoice, but at the bottom of the invoice, in a section labeled "STATEMENT OF ACCOUNT," the sum of $4,048.48 is shown as the amount of the "current" charge. But on adding up all the amounts separately charged in each of the invoices attached to the affidavit of counsel, we find that the erroneous sum listed as the "current" charge in the challenged invoice was not included in the total sum sought or awarded by the trial court. Nevertheless, our tallying of the individual invoices did reveal a $439.50 difference in the amount awarded by the trial court and the total legal costs incurred as shown in the billing invoices. As the amount awarded is in excess of the proven legal costs incurred, we will deduct this overage from the trial court's award.

The defendants acknowledge the billing error in the second invoice identified by Roper, and consistent with that acknowledgement, we will further amend the trial court's judgment to deduct $1,201.50 from the total amount awarded.

In her final assignment of error, Roper contests the inclusion of $666.58 in computer-aided legal research costs in the trial court's award. Roper contends that the only "costs" recoverable by the defendants are those costs identified in La. R.S. 13:4533. That statute provides that "[t]he costs of the clerk, sheriff, witness' fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs." In this case, the trial court allowed computer-aided legal research expenses to be taxed as costs in this matter.

In support of the award of those costs, the defendants argue that the expense of computer-aided legal research is not a cost, but instead is simply an element of the attorney fee award. In support of this contention, the defendants cite several federal court opinions, including one from the Middle District of Louisiana. See Sigur v. Emerson Process Management, 05-1323, 2008 WL 1908590, at *9 (M.D. La. Feb. 21, 2008), report and recommendation adopted as modified, 05-1323, 2008 WL 1908588 (M.D. La. Apr. 30, 2008) ; Camargo v. Trammell Crow Interest Company, 318 F.Supp.2d 448, 451, (E.D. Tex. 2004) ; and Haroco, Incorporated v. American National Bank & Trust Company of Chicago, 38 F.3d 1429, 1440 (7th Cir. 1994).

While federal courts may consider computer-aided legal research expenses to be an element of the fees payable to the attorney, it appears that such expenses have been treated as a cost in our state legal system. More importantly, Rule 1.8(e)(3) of the Rules of Professional Conduct of the Louisiana State Bar Association provides that an attorney may charge a client for computer legal research as a recoverable cost only with the informed consent of the client. See also Louisiana State Bar Association v. Edwins, 540 So.2d 294, 302-03 (La. 1989) (wherein the court observed that the disciplined attorney had charged a client for computer-aided legal research, which expense should have been borne by the attorney as part of his overhead in the absence of a prior agreement by the client to assume such costs in the employment contract or otherwise).

In this case, the record lacks necessary details regarding the computer legal research costs incurred. It is not disclosed whether the law firm incurs such costs on a per-use basis or whether it pays a flat rate that will be paid even if the service is not used. Additionally, there is no mention of whether there was any agreement with the clients allowing counsel to charge for such expense as required by Rule 1.8(e)(3). In the absence of such evidence, we find the record is insufficient to support an award of such costs. Hence, we conclude that the trial court erred in awarding the defendants the costs of computer-aided legal research. We, therefore, will further amend the judgment to delete this cost from the award as well.

CONCLUSION

For the foregoing reasons, we deduct the sum of $2,307.58 from the trial court's award, and thereby amend the judgment to reflect $32,336.15 as the total amount awarded as costs and attorney fees in this matter. With this modification, we affirm the judgment. All costs of this appeal, in the amount of $1,085.00, are apportioned equally to the parties.

AMENDED, AND AS AMENDED, AFFIRMED.

      See Roper v. Loupe, 15-1956 (La. App. 1st Cir. 10/28/16), 2016 WL 6330407 (unpublished opinion), writ denied, 17-0090 (La. 3/13/17), 216 So.3d 808.

      In reviewing the invoices, we do not find the charges to be inappropriate nor the time charged to be excessive. Further, except as mentioned in our review of Roper's third assignment of error, the charges and amounts listed in the invoices are not materially disputed by Roper.