text:
    Lana and Britt THERIOT v. ARCHER CONSTRUCTION, L.L.C. and State Farm Mutual Automobile Insurance Company
    2017 CA 1304
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered APRIL 30, 2018
    Philip A. Spence, Houma, LA, Attorney for Plaintiffs/Appellants Lana Theriot and Britt Theriot
    Frederic C. Fondren, George O. Luce, Houma, LA, Attorneys for Defendant/Appellee State Farm Mutual Automobile Insurance Company
    BEFORE: HIGGINBOTHAM, HOLDRIDGE AND PENZATO, JJ.
   HOLDRIDGE, J.

In this personal injury action, plaintiffs, Lana Theriot and her husband, Britt Theriot, appeal a judgment sustaining a peremptory exception raising the objection of prescription filed by defendant, State Farm Mutual Automobile Insurance Company (State Farm), and dismissing their lawsuit with prejudice. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On July 15, 2013, Mrs. Theriot was involved in an automobile accident occurring in Terrebonne Parish, in which her vehicle was struck by a vehicle owned by Archer Construction, L.L.C. and operated by Brandon Archer. On July 3, 2014, the Theriots filed a lawsuit in the 32nd Judicial District Court (JDC) seeking damages arising from the accident against Archer Construction and its insurer, State Farm (sometimes referred to as "the original lawsuit.") The Theriots failed to effectuate service of the petition within the ninety-day time period provided for in La. C.C.P. art. 1201. In the original lawsuit, State Farm filed a declinatory exception raising the objection of insufficiency of service of process. The Theriots and State Farm entered into a consent judgment on State Farm's exception of insufficiency of service of process. On November 2, 2016, the trial court entered a "Consent Judgment on Exception of Insufficiency of Service of Process." The consent judgment was made the judgment of the court, and in accordance therewith, the trial court entered judgment granting State Farm's exception and dismissing State Farm from the litigation without prejudice, at the Theriots' cost.

Several days later, on November 7, 2016, the Theriots refiled their lawsuit against Archer and State Farm in the 32nd JDC, seeking damages arising from the July 15, 2013 automobile accident. On January 9, 2017, State Farm filed a peremptory exception raising the objection of prescription with respect to the refiled petition. In the exception, State Farm maintained that the lawsuit was prescribed on the face of the pleading, shifting the burden to the Theriots to establish that prescription had not run. State Farm insisted that the Theriots could not carry this burden because the consent judgment operated as a voluntary dismissal of the Theriots' lawsuit under La. C.C. art. 3463, which provides that interruption of prescription resulting from the filing of a lawsuit in a court of competent jurisdiction and in the proper venue is considered never to have occurred if the plaintiff voluntarily dismisses the action at any time. State Farm maintained that because the Theriots voluntarily dismissed their lawsuit, the filing of the original lawsuit against it did not interrupt prescription, and all claims arising from the July 15, 2013 accident would have prescribed before the Theriots refiled their petition on November 7, 2016.

In opposition to the exception, the Theriots maintained that prescription was interrupted by the filing of the original lawsuit in a court of competent jurisdiction and venue under La. C.C. art. 3462 and continued as long as that lawsuit was pending under La. C.C. art. 3463. The Theriots argued that they did not voluntarily dismiss their original lawsuit, but merely consented to the involuntary dismissal of that petition pursuant to State Farm's exception of insufficiency of service. According to the Theriots, prescription was interrupted as to all defendants on July 3, 2014, when the original lawsuit was filed, continued until November 2, 2016, when the original lawsuit was dismissed, and commenced anew for one year thereafter, making the filing of the second petition within that one-year period timely.

Following a hearing, the trial court rendered judgment on March 30, 2017, sustaining State Farm's peremptory exception of prescription and dismissing the lawsuit with prejudice. The court found that the consent judgment of dismissal in the original lawsuit constituted a voluntary dismissal by the Theriots of their cause of action.

This appeal followed. In a single assignment of error, the Theriots contend that the trial court erred in finding that the consent judgment entered on November 2, 2016, constitutes a voluntary dismissal of their cause of action for the purposes of La. C.C. art. 3463.

DISCUSSION

Prescription statutes are strictly construed against prescription and in favor of maintaining the cause of action. Roberts v. USAA Casualty Insurance Company, 2014-0384 (La. App. 1st Cir. 11/7/14), 168 So.3d 418, 420. Thus, if there are two possible constructions, the one which favors maintaining an action, as opposed to barring, should be adopted. Id. Ordinarily, the burden is on the party raising the objection of prescription to prove the facts necessary to support the objection. However, if it appears on the face of the petition that prescription has run, the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period. Daisey v. Time Warner, 98-2199 (La. App. 1st Cir. 11/5/99), 761 So.2d 564, 567.

Generally, the trial court's factual findings on a peremptory exception raising the objection of prescription, such as the date on which prescription begins to run, are reviewed under the manifest error standard of review. Roberts, 168 So.3d at 420. However, the proper application and interpretation of a prescriptive statute is a question of law. Id. The issue of whether the Theriots' action is prescribed involves the proper application of La. C.C. articles 3462 and 3463. On review, this court must determine whether the trial court was legally correct or legally incorrect in determining that the Theriots' claims against State Farm were prescribed. See Roberts, 168 So.3d at 420.

The automobile accident in this case occurred on July 15, 2013; the lawsuit must have been filed on or prior to July 15, 2014 to be timely. The original lawsuit was filed on July 3, 2014, within the one-year prescriptive period. However, that lawsuit was dismissed and the instant lawsuit was not filed until November 7, 2016, well after the expiration of the one-year prescriptive period applicable to personal injury lawsuits. Because the Theriots' claims are prescribed on the face of the petition, they bore the burden of proving a suspension or interruption of prescription. See Sims v. American Insurance Company, 2012-0204 (La. 10/16/12), 101 So.3d 1, 4.

The Theriots attempt to discharge this burden by asserting that the timely filed original lawsuit operated to interrupt prescription on their claims against State Farm while the matter was pending pursuant to La. C.C. art. 3462 and La. C.C. art. 3463, which provide that prescription is interrupted by the filing of a lawsuit in a court of competent jurisdiction within the prescriptive period and continues as long as the suit is pending. The Theriots maintain that the timely filed original lawsuit interrupted prescription on their claim against State Farm until November 2, 2016, when that lawsuit was dismissed, and the one-year period commenced to run anew on that date, making the lawsuit filed on November 7, 2016, within that one-year period and thus timely.

Under La. C.C.P. art. 3463, the interruption of prescription resulting from the filing of a lawsuit in a court of competent jurisdiction and proper venue is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made an appearance of record or thereafter, or fails to prosecute the suit at trial. State Farm contends that the consent judgment dismissing the Theriots' lawsuit constitutes a "voluntary dismissal" of their action pursuant to La. C.C.P. art. 3463, and accordingly, prescription as to the Theriots' tort claim was never interrupted by their timely filed original lawsuit, making the refiled petition untimely.

We disagree. The only issue in this case is whether the consent judgment maintaining State Farm's declinatory exception of insufficiency of service of process constitutes a "voluntary dismissal" of the lawsuit under La. C.C. art. 3463. We conclude it does not.

Louisiana Code of Civil Procedure article 1671 provides that a judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if made prior to an appearance of record by the defendant. If the application is made after such appearance, a court may refuse to grant the judgment of dismissal except with prejudice. In this case, the Theriots never made a unilateral motion to voluntarily dismiss the original lawsuit. Instead, the original lawsuit was dismissed pursuant to a consent judgment made a judgment of the court sustaining State Farm's declinatory exception raising the objection of insufficiency of service of process.

In Sims , the Louisiana Supreme Court made it clear that La. C.C. art. 3463's provision that interruption of prescription "is considered never to have occurred if the plaintiff...voluntarily dismisses the action at any time..." means that if a plaintiff voluntarily dismisses the suit upon which interruption of prescription is based, that interruption is considered never to have occurred, regardless of whether the first suit is still pending at the time the second suit is filed. Sims , 101 So.3d at 6. Several cases have held that a settlement agreement does not constitute a "voluntary dismissal" of an action by a plaintiff for the purposes of La. C.C. art. 3463. In Pierce v. Foster Wheeler Constructors, Inc. , 2004-0333 (La. App. 1st Cir. 2/16/05), 906 So.2d 605, 610, writ denied, 2005-0567 (La. 4/29/05), 901 So.2d 1071, another panel of this court held that the dismissal of a lawsuit on the basis of a transaction or compromise between the parties did not constitute a "voluntary dismissal" by the plaintiff within the meaning of La. C.C. art. 3463. Instead, this court concluded that the plaintiff did not dismiss the action, but resolved it by transaction or compromise, and the dismissal that was entered into the record simply cleaned up the record and disposed on any incidental matters, allowing it to be closed. Accord Dark v. Marshall, 41,711 (La. App. 2nd Cir. 12/13/06), 945 So.2d 246, 250-51 (stating that the dismissal of a suit with prejudice after both parties have settled cannot be characterized as a voluntary and unqualified dismissal by the plaintiff alone so as to negate a prior interruption of prescription pursuant La. C.C. art. 3463 ).

In an identical situation, another panel of this court held that a consent judgment on an exception of insufficiency of service of process was not a "voluntary dismissal" of the lawsuit for the purpose of La. C.C. art. 3463. In Pullin v. Chauvin, 2017-1292 (La. App. 1st Cir. 3/15/18), 244 So.3d 472, 473-74, 2018 WL 1324459 at *3 the plaintiff filed the first lawsuit against two defendants seeking damages arising from a 2013 accident, but failed to request service of process upon them within ninety days. The defendants were dismissed from the first lawsuit pursuant to a consent judgment granting the defendants' exception of insufficiency of service of process. Thereafter, the plaintiff filed a second lawsuit against the same defendants seeking damages from the 2013 accident. As in this case, the trial court found that the plaintiff voluntarily dismissed her cause of action in the first lawsuit by entering into the consent judgment, and consequently, that lawsuit did not interrupt prescription on the plaintiff's claims against the dismissed defendants.

In Pullin, this court reversed that ruling. This court surveyed the jurisprudence and concluded that a voluntary dismissal under La. C.C.P. art. 1671 requires an affirmative action by the plaintiff seeking dismissal of the suit. This court stressed that the consent judgment merely confirmed that in response to the original lawsuit, the defendants filed an exception of insufficiency of service of process. The plaintiff in Pullin indisputably did not request service of the first lawsuit within ninety days, and absent good cause, the trial court was required to enter judgment involuntarily dismissing the action without prejudice. See La. C.C.P. art. 1672(C) (providing that a judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by La. C.C.P. art. 1201(C) unless good cause is shown why the service could not be requested, in which the court may order that service be effected within a specified time). This court further observed that the plaintiff's consent was irrelevant to the defendants' entitlement to a judgment granting the exception and at most, her consent simply confirmed that she had no good cause to not request service, which prevented the trial court from ordering service within a specified time. This court concluded "[l]ike a dismissal after a compromise or settlement, the consent judgment, which the defendants were clearly entitled to, cannot be characterized as a voluntary and unqualified dismissal by the plaintiff alone." Pullin, 244 So.3d at 475-76, 2018 WL 1324459 at *6. Instead of seeking a dismissal of the original lawsuit, the plaintiff simply conceded that the dismissal was legally supported. Therefore, this court held that interruption of prescription continued while the first suit was pending and began to run anew from the day the consent judgment was signed, making the second suit, filed within a year of that date, timely. Id.

In accordance with Pullin , we hold that the dismissal of the original lawsuit pursuant to a consent judgment sustaining a peremptory exception raising the objection of insufficiency of service of process is not a voluntary and unqualified dismissal by the Theriots alone so as to negate the prior interruption of prescription resulting from the timely filed original lawsuit pursuant to La. C.C. art. 3463. In this case, prescription on the Theriots' claims against State Farm was interrupted by the timely filed lawsuit on July 3, 2014, and continued as long as that lawsuit was pending, until November 2, 2016. Thereafter, the one-year prescriptive period began to run anew, making the refiling of the petition on November 7, 2016, timely. See La. C.C. art. 3466 (providing that if prescription is interrupted, the time that has run is not counted; prescription commences to run anew from the last day of interruption); See also Jones v. Department of Transportation and Development, 94-1908 (La. App. 1st Cir. 6/30/95), 659 So.2d 818, 819-20. Accordingly, the trial court erred in sustaining State Farm's peremptory exception raising the objection of prescription, and we reverse that ruling.

CONCLUSION

For the foregoing reasons, the judgment appealed from is reversed, and the matter is remanded to the trial court for proceedings consistent with this opinion. Costs of this appeal are assessed to defendant, State Farm Mutual Automobile Insurance Company.

REVERSED AND REMANDED.

      In the refiled petition, the Theriots alleged that the accident occurred on July 15, 2014. There is no dispute in this case that the accident sued upon occurred on July 15, 2013.

      In Pullin this court also relied on La. R.S 9:5801 in finding that prescription was interrupted as long as the first lawsuit was pending. Louisiana R.S. 9:5801 provides that interruption is considered never to have occurred as to a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to request service of citation was due to bad faith. As in this case, there was no showing in Pullin that the failure to request service of citation was due to bad faith. Because there was no showing of bad faith on the part of the plaintiff this court found in Pullin that the first lawsuit interrupted prescription on the plaintiff's claims against the dismissed defendants. Pullin , 244 So.3d at 475-76, 2018 WL 1324459 at *6 ; See also Williams v. State Farm Mutual Automobile Insurance Company , 2004-2182 (La. App. 4th Cir. 5/18/05), 904 So.2d 782, 785-86.


source: Caselaw Access Project

author: PENZATO, J.

license: Public Domain

text:
    Gustave J. LABARRE, Jr., et al. v. OCCIDENTAL CHEMICAL COMPANY and Texas Brine Company, LLC, et al.
    2017 CA 1368
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MAY 2, 2018
    Leopold Z. Sher, James M. Garner, Peter L. Hilbert, Jr., Jeffrey D. Kessler, New Orleans, Louisiana and Robert Ryland Percy, III, Gonzales, Louisiana and Travis J. Turner, Gonzales, Louisiana and Eric J. Mayer, Houston, Texas, Attorneys for Appellant/Defendant/Third-Party Plaintiff, Texas Brine Company, LLC
    Roy C. Cheatwood, Kent A. Lambert, Adam B. Zuckerman, Paul C. Thibodeaux, Colleen C. Jarrott, Mathew S. Chester, Matthew C. Juneau, New Orleans, Louisiana and Tony M. Clayton, Port Allen, Louisiana Attorneys for Appellee/Third-Party Defendant, Legacy Vulcan, LLC
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

This is an appeal from a trial court judgment granting a motion for summary judgment filed by Legacy Vulcan, LLC on behalf of Vulcan Chloralkali, LLC (collectively referred to as VC), and dismissing the third-party demands of Texas Brine Company, LLC (Texas Brine) against VC. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The underlying litigation involves the appearance of a sinkhole near Bayou Come in Assumption Parish, Louisiana, in August 2012, which resulted when the brine production well known as Oxy Geismar Well No. 3 (OG3) collapsed. The plaintiffs owned property in the area, and filed suit against Texas Brine, the operator of OG3, among others, for damages to their property. In response to plaintiffs' suit, Texas Brine filed a third-party demand against VC, alleging that the sinkhole would not have occurred but for VC's negligent decision to increase brine production with reckless disregard to any risks or dangers that may have been attendant to that decision.

The following facts are not in dispute. In 1968, Vulcan Materials Company, now known as Legacy Vulcan, LLC (Vulcan), completed construction of a chlorinated organic chemicals plant in Geismar, Louisiana, which was expanded in the mid-1970's to add a chlorine manufacturing facility. Vulcan contracted with Texas Brine to supply brine to its Geismar plant by pipeline utilizing salt mined by Texas Brine from the Napoleonville Salt Dome located in Assumption Parish, including from OG3, which was drilled in 1982. In June of 1998, VC was formed as a joint venture between Vulcan Chemicals Investment, LLC ("VCI"), a company wholly owned by Vulcan, and Victory Chlor-Alkali and EDS Company, Inc., an affiliate of Mitsui & Co., Ltd., to construct and own a new chemical facility at a site adjacent to Vulcan's Geismar plant. VC contracted with Vulcan to operate the new facility. In addition, VC contracted with Vulcan for Vulcan to supply treated brine to VC's facility, VC had no contractual privity with Texas Brine related to the production or delivery of raw brine mined from the Napoleonville Salt Dome. VC had no control over the upstream drilling, development, maintenance, or operation of any brine mining wells or related production facilities owned and/or operated by Texas Brine. In 2005, the assets of VC were sold to Basic Chemicals Company, LLC, an affiliate of Occidental Chemical Corporation.

The summary judgment evidence indicated the following facts. In April 1998, RE/SPEC Inc. issued a report prepared at Vulcan's request for the purpose of ensuring that there were sufficient brine reserves to supply Vulcan's existing plant as well as the expansion through the formation of VC. The RE/SPEC report indicated that OG3 cavern was "very close to the salt edge." There was deposition testimony as to discussions between Vulcan and Texas Brine regarding the 1998 RE/SPEC report; Texas Brine acknowledged receipt of a final RE/SPEC report in 2005.

VC filed a motion for summary judgment contending that the undisputed evidence established that VC, a manufacturer and distributer of chemical products, had no contractual privity with Texas Brine, had no dealings or direct interaction with Texas Brine, and otherwise neither assumed nor owed any duty to Texas Brine that could give rise to any claim or cause of action. Texas Brine opposed the summary judgment, contending that VC is liable under La. C.C. arts. 660, 667, 2315, 2317, 2317.1, and 2322 for damages resulting from its negligence in requiring or encouraging increased brine production from existing brine caverns in order to meet the brine requirements of its facility.

Following a hearing on January 25, 2017, the trial court granted the summary judgment, concluding that VC owed no legal duty to Texas Brine. The trial court signed a judgment in accordance with that ruling on March 23, 2017, which provided that:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Motion for Partial Summary Judgment filed by Legacy Vulcan, LLC on Behalf of Vulcan Chloralkali, LLC is hereby GRANTED.

Texas Brine appealed, alleging that the trial court erred in granting summary judgment finding that VC owed no legal duty to Texas Brine.

RULE TO SHOW CAUSE AND MOTION TO SUPPLEMENT RECORD

Before we can consider the merits of this appeal, we must address the rule to show cause order issued by this court, ex proprio motu , on October 6, 2017, and the motion to supplement the record on appeal filed by Texas Brine on November 8, 2017. The rule to show cause order noted that the trial court's March 23, 2017 ruling appeared unclear and lacked the specificity required by law; the rule to show cause order further noted that the March 23, 2017 ruling appeared to be a partial judgment lacking the designation of finality required by La. C.C.P. art. 1915(B). The parties were directed to show cause as to whether the appeal should or should not be dismissed for these reasons. In addition, the matter was remanded for the limited purpose of allowing the trial court to sign a judgment addressing the apparent defects in the March 23, 2017 ruling and inviting the trial court to provide a per curiam giving its reasons for its La. C.C.P. art. 1915(B) designation. Finally, the parties were directed that they may request that the appellate record be supplemented with the above-referenced judgment or per curiam on or before November 5, 2017. On December 7, 2017, the rule to show cause order was referred to the panel to which the merits of the appeal were assigned.

On November 8, 2017, Texas Brine filed a motion to supplement the record on appeal with an amended judgment and a per curiam order signed on October 30, 2017. Notice of signing of the per curiam order was mailed on November 2, 2017; notice of signing of the amended judgment was mailed on November 3, 2017. VC did not file an opposition to the motion to supplement the record on appeal, but argued in its appeal brief that Texas Brine failed to comply with this court's order that any request to supplement the record be filed on or before November 5, 2017, and failed to seek an extension of time. Texas Brine contended that it did not receive the trial court's amended judgment and per curiam order until November 7, 2017, and filed them "as soon as [they] were available."

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. La. C.C.P. art. 1841. It may be interlocutory or final; a judgment that does not determine the merits but only preliminary matters in the course of an action is an interlocutory judgment, whereas a judgment that determines the merits in whole or in part is a final judgment. Id. The appellate jurisdiction of this court extends to final judgments. See La. C.C.P. art. 2083 ; Old Republic Life Ins. Co. v. TransWood Inc., 2016-0552 (La. App. 1 Cir. 6/2/17), 222 So.3d 995, 1002.

Louisiana Code of Civil Procedure article 1918 provides that "[a] final judgment shall be identified as such by appropriate language." It must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Gros v. STMG Lapeyre, LLC, 2014-0848 (La.App. 1 Cir. 5/6/15), 2015 WL 2169680, *2 (unpublished). The trial court's March 23, 2017 judgment lacked the appropriate decretal language disposing of and/or dismissing Texas Brine's third-party claims against VC, which was necessary for a valid final judgment. See Id. at *3. Moreover, the judgment purported to grant a partial summary judgment in favor of VC, but was not designated as a final judgment as required by La. C.C.P. art. 1915(B), which provides that when a court renders a partial summary judgment, the judgment shall not constitute a final judgment unless it is designated as such by the court after an express determination that there is no just reason for delay.

As noted above, the trial court signed an amended judgment on October 30, 2017, which contained the following decretal language:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Motion for Summary Judgment filed by Legacy Vulcan, LLC on Behalf of Vulcan Chloralkali, LLC is hereby GRANTED, dismissing Texas Brine Company, LLC's third-party claims against Vulcan Chloralkali, LLC.

The per curiam order signed on October 30, 2017, certified the judgment as immediately appealable pursuant to La. C.C.P. art. 1915(B).

The October 30, 2017 amended judgment contains the appropriate decretal language to be considered a valid final judgment that addresses all of the jurisdictional issues raised in this court's October 6, 2017 show cause order. It grants VC's motion for summary judgment and dismisses all of Texas Brine's third-party claims against VC. In addition, it removes the erroneous identification of VC's motion for summary judgement as a partial motion for summary judgment, thereby clarifying that it is a partial final judgment pursuant to La. C.C.P. art. 1915(A)(1), making its designation as a final judgment pursuant to La. C.C.P. art. 1915(B) unnecessary.

We recognize and do not condone Texas Brine's failure to request that the appellate record be supplemented on or before November 5, 2017. However, in the interest of judicial economy, we grant the motion to supplement the appellate record with the October 30, 2017 amended judgment and per curiam order. As supplemented, we find that the record on appeal contains a final, appealable judgment over which our appellate jurisdiction extends. Therefore, we recall the rule to show cause order, and maintain the appeal.

LAW AND DISCUSSION

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966A(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966A(2).

The burden of proof is on the mover. La. C.C.P. art. 966D(1). 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 does not require that all essential elements of the adverse party's claim, action, or defense be negated. Rather, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must 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. 966D(1). If, however, the mover fails in his burden to show an absence of factual support for one or more of the elements of the adverse party's claim, the burden never shifts to the adverse party, and the mover is not entitled to summary judgment. Succession of Hickman v. State Through Bd. of Supervisors of Louisiana State Univ. Agric. & Mech. Coll., 2016-1069 (La. App. 1 Cir. 4/12/17), 217 So.3d 1240, 1244.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Reynolds v. Bordelon, 2014-2371 (La. 6/30/15), 172 So.3d 607, 610. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Succession of Hickman, 217 So.3d at 1244.

Texas Brine's claims are based upon VC's alleged negligence in requiring or encouraging increased brine production from existing brine caverns in order to meet the brine requirements of facilities owned by VC. Negligence claims are examined using a duty-risk analysis. In order for liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault v. Merchants & Farmers Bank & Trust Co. , 2001-2217 (La. 4/3/02), 816 So.2d 270, 275-76.

One of the necessary considerations in the duty-risk analysis is to determine what, if any, duties were owed by the respective parties. Whether a legal duty exists, and the extent of that duty, depends on the facts and circumstances of the case, and the relationship of the parties. Joseph v. Dickerson, 99-1046 (La. 1/19/00), 754 So.2d 912, 916. Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law-statutory, jurisprudential, or arising from general principles of fault-to support his claim. Faucheaux v. Terrebonne Consol. Gov., 615 So.2d 289, 292 (La. 1993).

In order to resolve the question of whether VC owed a legal duty to Texas Brine we must focus on the relationship between VC and Texas Brine. VC manufactured and distributed chemical products following its formation in 1998 until the sale of its assets in 2005. VC contracted with Vulcan for Vulcan to supply treated brine to VC's facility. Texas Brine supplied brine to Vulcan by pipeline utilizing salt mined by Texas Brine from the Napoleonville Salt Dome, including from OG3. VC had no contractual privity with Texas Brine related to the production or delivery of raw brine mined from the Napoleonville Salt Dome. VC had no control over the upstream drilling, development, maintenance, or operation of any brine mining wells or related production facilities owned and/or operated by Texas Brine. There is no evidence that VC required brine from OG3.

Texas Brine does not identify any statutory law that imposes upon VC a legal duty under the facts and circumstances of its relationship with Texas Brine. Moreover, the facts of this case, as well as the applicable law, distinguish it from the cases relied upon by Texas Brine. In Istre v. Fidelity Fire & Casualty Ins. Co., 628 So.2d 1229, 1232 (La. App. 3 Cir. 1993), writ denied, 634 So.2d 852 (La. 1994), a construction company was found negligent for an accident occurring as a result of a traffic light being out, despite its lack of privity of contract with the injured party. However, in that case a backhoe operator employed by the construction company was responsible for creating the power outage that affected the traffic light. In Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1017-18 (La. 1993), the Louisiana Supreme Court extended the duty owed by the defendant termite company to give accurate information, beyond the sellers of the property, who had employed the company, to the purchasers. In Barrie, the defendant exercised control over its inspector that issued the termite report. Id.

In contrast, VC had no control over Texas Brine's operations. In such cases, courts have declined to impose a legal duty in tort. See Stewart v. Dixilyn-Field Drilling , 552 So.2d 710, 713 (La. App. 3 Cir. 1989) (no duty was owed by pump manufacturer to employee of drilling rig, where manufacturer had no control over employee); Thornhill v. Black, Sivalls & Bryson, Inc., 385 So.2d 336, 338 (La. App. 1 Cir. 1980), aff'd, 394 So.2d 1189, 1192 (La. 1981) (seller of component parts of conveyor system that had no part in the design, installation or construction of grain elevator and no control over modification to part made by purchaser was not liable for injury to grain elevator employee).

Thus, we find that where, as here, there is no evidence that VC had control over Texas Brine's operation of OG3, or actually required brine from OG3, there is no legal duty owed by VC to Texas Brine. VC, therefore, cannot be liable to Texas Brine, and any argument that the trial court erred in granting summary judgment in favor of VC has no merit.

CONCLUSION

Based on the foregoing, the trial court's dismissal of Vulcan Chloralkali, LLC, on a motion for summary judgment is affirmed. Pursuant to La. C.C.P. art. 2164, we amend the October 30, 2017 judgment to state that the dismissal of Texas Brine's third-party claims is "with prejudice." Costs of this appeal are assessed to plaintiff Texas Brine Company, LLC.

MOTION TO SUPPLEMENT GRANTED; RULE TO SHOW CAUSE ORDER RECALLED; JUDGMENT AFFIRMED AS AMENDED.

      We note that November 5, 2017 was a Sunday. Since Sunday was a legal holiday, the delay was extended to the following Monday, November 6, 2017.

      We note that the judgment does not dismiss Texas Brine's third-party claims "with prejudice."

      Louisiana Code of Civil Procedure article 1915(A)(1) provides that a final judgment may be rendered and signed by the court, even though it may not grant the successful party all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court dismisses the suit as to less than all of the parties, defendants, third-party plaintiffs, third-party defendants, or intervenors.