author: GREMILLION, Judge.

text:
    Jordan BRYANT v. State of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS, et al.
    18-423
    Court of Appeal of Louisiana, Third Circuit.
    January 16, 2019
    Deirdre Renee Fuller, Fuller Law Firm, L.L.C., 602 Murray Street Alexandria, LA 71301, (318) 448-3456, COUNSEL FOR PLAINTIFF/APPELLANT: Jordan Bryant
    Jeff Landry, Attorney General, Lewis O. Lauve, Jr., Special Assistant Attorney General, 3112 Jackson Street, Alexandria, LA 71301, (318) 449-1937, COUNSEL FOR DEFENDANT/APPELLEE: Andrea Ford
    Jeff Landry, Attorney General, Barbara Bell Melton, Special Assistant Attorney General, Nate W. Friedman, Special Assistant Attorney General, Faircloth Melton & Sobel, LLC, 105 Yorktown Drive, Alexandria, LA 71301, (318) 619-7755, COUNSEL FOR DEFENDANT/APPELLEE: Thaddeus Green
    Jeff Landry, Attorney General, Leisa B. Lawson, Assistant Attorney General, 900 Murray St., Suite B-100B, Alexandria, LA 71301, (318) 487-5944, COUNSEL FOR DEFENDANT/APPELLEE: Department of Children and Family Services
    Jeff Landry, Attorney General, Steven M. Oxenhandler, Special Assistant Attorney General, Michael J. O'Shee, Special Assistant Attorney General, Gold, Weems, Bruser, Sues & Rundell, P. O. Box 6118, Alexandria, LA 71307-6118, (318) 445-6471, COUNSEL FOR DEFENDANTS/APPELLEES: State of Louisiana, Department of Health and Hospitals Office for Citizens with Developmental Disabilities Pinecrest Supports & Services Center
    Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and John E. Conery, Judges.
   GREMILLION, Judge.

Plaintiff/Appellant, Mr. Jordan Bryant, appeals the dismissal of his personal injury claim against the Defendants/Appellees, Andrea Ford, Thaddeus Green, and the State of Louisiana through the Department of Health and Hospitals (DHH), the Office for Citizens with Developmental Disabilities (OCDD), Pinecrest Supports & Services Center (Pinecrest), and the Department of Children and Family Services (DCFS) on exceptions of prematurity and prescription.

The facts alleged in Mr. Bryant's original petition assert a very tragic incident in which Ford and Green, employed at the time by Pinecrest, took Mr. Bryant, a resident of Pinecrest, into his room and used excessive force to subdue him. As a result, Mr. Bryant's neck was broken, and he was rendered a quadriplegic. In his petition, he alleged a number of negligent and intentional acts and omissions on the defendants' part, including allegations that sound as though at least part of his demand is based upon medical malpractice. Prior to filing his suit, though, Mr. Bryant did not request that his matter be submitted to a medical review panel (a panel) pursuant to the Medical Liability for State Services Part of the Louisiana Medical Malpractice Act (the Act), La.R.S. 40:1237.1 et seq., which, with certain exceptions, requires that medical malpractice claims against the State first be submitted to a panel.

The defendants filed exceptions of prematurity and prescription in which they asserted that Mr. Bryant's claim was premature because he did not convene a panel and had prescribed because more than a year elapsed since his injury and he had not initiated his claim properly. Mr. Bryant amended his petition several times in an attempt to address the exceptions. At the hearing on the exceptions, no evidence was introduced. No documentary evidence was attached to any of the defendants' exceptions. The trial court granted the exceptions as to all defendants. This appeal followed. Mr. Bryant asserts that the trial court erred in granting Appellees' exceptions of prematurity and prescription because they failed to carry the requisite burden of proof. He further asserts that the trial court erred in applying the Louisiana Medical Malpractice Act to the allegations asserted in his petition. For the reasons that follow, we reverse.

ANALYSIS

The Act erects a framework within which all medical malpractice claims against state health care providers must be pursued. " 'Malpractice' means the failure to exercise the reasonable standard of care specified and required by Subsection B of this Section, in the provision of health care, when such failure proximately causes injury to a patient, as provided in Subsection B of this Section." La.R.S. 40:1237.1(A)(4). The definition of "State health care provider" is lengthy; however, it essentially encompasses all state departments and agencies that provide health care services, including their employees acting in the course and scope of their employment. La.R.S. 40:1237.1(A)(9).

"No action against the state, its agencies, or a person covered by this Part, or his insurer, may be commenced in any court before the claimant's complaint has been presented to a state medical review panel established pursuant to this Section." La.R.S. 40:1237.2(B)(1)(a)(i).

The defendants who interpose exceptions of prematurity bear the burden of proof, including entitlement to review of the plaintiff's action by a panel. Broussard v. Lafayette Physical Rehabilitation Hosp., LLC , 15-1185 (La.App. 3 Cir. 5/4/16), 191 So.3d 1202. Because the defendants justify the trial court's maintenance of their exceptions on the basis of the allegations contained in Mr. Bryant's petition and amended petitions, we will examine those in detail. Defendants argue that, as a matter of law, Mr. Bryant's petition(s) allege medical malpractice claims.

After receiving the exceptions, as mentioned above, Mr. Bryant sought to address the exceptions by filing first, second, and third supplemental and amending petitions. There exists a problem with these amended pleadings, though; for, while Mr. Bryant prayed for leave of court to file these pleadings, no order allowed them. No written consent of any party to these amendments appears in the record. See La.Code Civ.P. art. 1151. We are without authority to consider them.

Mr. Bryant's original petition alleges in part:

6.
On or about September 30, 2016, Andrea Ford and Thaddeus Green, who were employed as staff at Pinecrest, took Jordan into his room and used unreasonable physical force on him to subdue him, which caused him significant bodily injury and rendered him unconscious.

The petition goes on to allege that the defendants were negligent in several particulars, including "Failing to adhere to the accepted standards of medical and mental health practices required under the circumstances[,]" and "Intentionally and/or negligently using excessive, unreasonable and unwarranted force to control the behavior of Jordan Bryant[.]" The petition also alleges that Mr. Bryant was treated for his injuries at Rapides Regional Medical Center. After release from Rapides Regional, Mr. Bryant was sent to Meadowview Nursing Home in Minden, Louisiana, where, he alleges, he was subjected to abuse and neglect. Bedsores he developed at Meadowview resulted in Mr. Bryant having to undergo surgery at Willis Knighten Medical Center in Shreveport, followed by return to Meadowview.

The question before us, then, is whether the petition on its face alleges a medical malpractice claim. We note that, because no evidence was adduced at the hearing on the defendants' exceptions, our review owes no deference to the trial court's determination. Arton v. Tedesco , 14-1281 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, writ denied , 15-1065 (La. 9/11/15), 176 So.3d 1043.

Coleman v. Deno , 01-1517, pp. 17-18 (La. 1/25/02), 813 So.2d 303, 315 (citations omitted), listed the six factors courts should consider in determining whether conduct is "malpractice":

"[1] whether the particular wrong is 'treatment related' or caused by a dereliction of professional skill,
[2] whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached, and
[3] whether the pertinent act or omission involved assessment of the patient's condition."
....
[4] whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
[5] whether the injury would have occurred if the patient had not sought treatment, and [6] whether the tort alleged was intentional.

From the information available to us, which is limited to the allegations of the petition, we cannot say whether this incident was "treatment related," but it is alleged that it was "caused by a dereliction of professional skill," per Coleman , as among the allegations of the petition are those that allege that Pinecrest failed to adequately train Ford and Green. Without more information about what specifically occurred between Ford, Green, and Mr. Bryant, we have no means of determining whether expert testimony will be required to prove that their conduct was substandard. The allegations do not involve an instance in which Ford and Green were assessing Mr. Bryant's condition. The incident did not occur in the context of the doctor-patient relationship, but the allegations do establish it in the context of those services for which Pinecrest was established.

Pinecrest is not a hospital. It is a "developmental center" as defined in La.R.S. 28:451.2(9), which provides:

"Developmental center" means an administrative unit of the office under its administration, supervision, and control through which the office provides and develops developmental disabilities services and system capacity building efforts. Developmental centers are responsible for:
(a) Planning and providing living options and other developmental disabilities services as determined by the office.
(b) Stimulating and supporting capacity building within the system through resource centers, technical assistance, training, and other means as determined by the office.

Pinecrest's duty, pursuant to La.R.S. 28:451.4, is to provide "developmental disability services," also defined in La.R.S. 28:451.2(10) as "programs, services, and supports for persons with developmental disabilities that include but are not limited to information and referral services, support coordination services, system entry services, development of the support profiles and plans, individual and family support services, living options, habilitation services, and vocational services." These services are delivered to people with developmental disabilities, also defined in La.R.S. 28:451.2, which represent disabilities that severely impact one's ability to care for himself, his ability to communicate, his learning capacity, or his mobility and that requires "a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services which are of lifelong or extended duration and are individually planned and coordinated." Thus, medical care forms a component of the services Pinecrest provides.

It is far from clear that Mr. Bryant "sought treatment" at all. He was present at Pinecrest but alleges that he was taken by Green and Ford into his room to be subdued and allegedly beaten.

Proof of these Coleman factors is the burden imposed on the defendants. They submitted no evidence whatsoever and argue with vigor the first five factors as though they are dispositive of the issue. We disagree and find, in the context of the Act, the sixth Coleman factor, whether the petition alleges intentional tortious conduct, to be of greater significance.

Within the definition of "State health care provider" in La.R.S. 40:1237.1(9) is found subsection (a)(iv)(cc), which provides, "However, no person or entity referenced in this item shall be considered a 'state health care provider' or 'person covered by this Part' for any injury or death of the patient resulting from any act or omission of gross negligence or any willful or wanton act or omission." "The word 'willful' has been defined as proceeding from a conscious motion of the will; voluntary; knowingly; deliberate; intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary. Black's Law Dictionary 1599 (6th ed. 1990)." Grant v. Natchitoches Manor Nursing Home , 96-1546, p. 4 (La.App. 3 Cir. 5/14/97), 696 So.2d 73, 76, writ denied , 97-1582 (La. 10/17/97), 701 So.2d 1330. We conclude that willful-and, by definition, intentional-acts are not covered by the Act.

Mr. Bryant alleges that Green and Ford employed "excessive, unreasonable and unwarranted force" in subduing him. This constitutes an intentional tort that is not covered by the Act. Because the petition was filed within one year and was not premature, the claim would not be prescribed regardless of the applicable statute, be it La.Civ.Code arts. 3492, 3493.10, or 3496.1, or La.R.S. 9:2800.9, of which the shortest prescriptive period is one year. The trial court erred in granting the exceptions of prematurity and prescription.

The judgment of the trial court dismissing the petition of Jordan Bryant is reversed and the matter remanded to the trial court for proceedings consistent with this opinion. All costs of this proceeding, in the amount of $2,659.71, are taxed to defendants/appellees, the State of Louisiana, Department Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, Pinecrest Supports & Services Center, Department of Children and Family Services, Andrea Ford, and Thaddeus Green.

REVERSED.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE: HARRIER TRUST
    18-324
    Court of Appeal of Louisiana, Third Circuit.
    January 30, 2019 Rehearing Denied March 13, 2019
   Hunter W. Lundy, Rudie R. Soileau, Jr., T. Houston Middleton, IV, Daniel A. Kramer, Lundy, Lundy, Soileau & South, L.L.P., P.O. Box 3010, Lake Charles, LA 70602-3010, (337) 439-0707, COUNSEL FOR DEFENDANT/APPELLANT: Preston L. Marshall

Wilford D. Carter, Wilford Carter Law, LLC, 1025 Mill Street, Lake Charles, LA 70601, (337) 564-6990, COUNSEL FOR DEFENDANT/APPELLANT: Preston L. Marshall

Philip A. Franco, Leigh Ann Schell, Adams and Reese LLP, One Shell Square, 701 Poydras Street, Suite 4500, New Orleans, LA 70139, (504) 581-3234, COUNSEL FOR PLAINTIFFS/APPELLEES: Adam P. Johnson, Pastor Edward Alexander

Walter M. Sanchez, Alexander L. H. Reed, The Sanchez Law Firm, LLC, 1200 Ryan Street, Lake Charles, LA 70601, (337) 433-4405, COUNSEL FOR PLAINTIFF/APPELLEE: Elaine T. Marshall, Trustee/Harrier Trust

L. J. Hymel, Jr., Tim P. Hartdegen, Michael Reese Davis, Richard A. Sherburne, Jr., Hymel Davis & Petersen, LLC, 10602 Coursey Blvd., Baton Rouge, LA 70816, (225) 298-8118, COUNSEL FOR PLAINTIFF/APPELLEE: Elaine T. Marshall, Trustee/Harrier Trust

Todd S. Clemons, Janet D. Madison, Todd Clemons & Associates, APLC, 1740 Ryan Street, Lake Charles, LA 70601, (337) 477-0000, COUNSEL FOR PLAINTIFF/APPELLEE: Elaine T. Marshall, Trustee/Harrier Trust

Court composed of Phyllis M. Keaty, D. Kent Savoie, and Van H. Kyzar, Judges.

KYZAR, Judge.

The defendant, Preston L. Marshall, appeals from a trial court judgment granting partial summary judgment in favor of the plaintiff co-trustees, Edward Alexander and Adam P. Johnson, finding that Elaine T. Marshall, in her capacity as trustee of the Harrier Trust, had authority under the trust instrument to appoint five co-trustees and that the co-trustees appointed were disinterested parties to the trust. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

The Harrier Trust (the Trust) was created by the settlor, E. Pierce Marshall, Sr., on May 5, 2006, who named his wife, Elaine T. Marshall, as trustee and his son, Preston L. Marshall (referred to as Preston), as the initial beneficiary, with his surviving descendants named as secondary beneficiaries. The Trust, which is irrevocable, was created pursuant to the laws of the Louisiana Trust Code, and provided that "[t]he Trustee shall apply to the [Fourteenth] Judicial District Court for Calcasieu Parish, Louisiana, for instructions regarding any questions that might arise regarding administration of the Trust."

Matters related to the Trust have been before this court on numerous occasions, and a further appeal is currently pending before this court. The extensive factual background and litigation history of this matter has been exhaustedly set forth by this court numerous times, and thus, will not be repeated here.

The Trust provides the trustee with general discretionary authority, stating, "The Trustee shall have the sole discretion to determine the manner, time, circumstances and conditions of the exercise of any right, power or authority vested in the Trustee." It further provides the trustee with the power to designate co-trustees, limited only as follows: "The Trustee shall be empowered to select and designate one or more disinterested individuals to serve as co-trustee and may designate a successor trustee should she cease or otherwise fail to serve as Trustee for any reason whatsoever." Other than being disinterested, the Trust sets forth no other qualifications or requirements for being a co-trustee. The Trust also gives the trustee the authority to hire managers, supervisors, accountants, appraisers, or attorneys to assist with the proper administration of the Trust.

In 2016, Mrs. Marshall, as trustee, appointed five co-trustees to serve with her in managing the trust. To accomplish this, she hired Lake Charles attorney Edwin Hunter and gave him instructions "to interview and find diverse people of very high quality and reputation" in Lake Charles who could serve as disinterested co-trustees. Mr. Hunter provided Mrs. Marshall with the resumes of such individuals, and on December 6, 2016, she appointed five individuals as co-trustees: Dr. Wayne S. Thompson, Jr., Judge Lilyann Cutrer, Dr. Karen Aucoin, Edward Alexander, and Adam P. Johnson. The notarial act appointing each co-trustee further provided the manner in which the co-trustee was to be compensated, as follows:

Compensation for the Co-Trustees shall be determined by a formula divided by the number of Co-Trustees serving for that year and compensation shall be paid in quarterly installments or if, for whatever reason, quarterly installments are not able to be made then annually. The Co-Trustees shall divide a trustees' fee for each calendar year not to exceed forty percent (40%) of the gross trust receipts, less than any principal distribution received from any trust, during that year. The fee shall equal to the sum of (1) 0.3% of (a) the calculation value, as defined below, of the trust's interest in the PLM/EPM Marital Income Trust and, (b) the fair market value of all other assets, and (3) 5% of the gross trust receipts. For the purpose of this agreement values shall be determined as of December 31st of each year. The calculation value for the trust's interest in the PLM/EPM Marital Income Trust shall equal 60% of the fair market value of that trust's corpus adjusted to present value at 6% per annum discount rate with an actuarial based on Mrs. Elaine T. Marshall's life expectancy as determined by the use of Life Table 90 CM as published by the United States Department of the Treasury. There shall be no compensation for the year 2016.

Mrs. Marshall initially filed this action as a petition for declaratory relief on July 22, 2016, alleging that her efforts to provide an accounting were impeded by the beneficiary's failure to cooperate. Subsequent to Mrs. Marshall's amendment of her petition for declaratory relief, Preston filed a motion to intervene as a defendant on November 4, 2016, which was granted by the trial court on December 15, 2016. On January 11, 2017, Mrs. Marshall filed a second amended petition for declaratory relief, in which she alleged that she had appointed the five co-trustees and asked that the trial court declare that the five co-trustees were properly appointed in compliance with the provisions of the Trust and with Louisiana trust law.

On May 12, 2017, Mrs. Marshall, along with Co-trustees Alexander and Johnson, filed a motion for partial summary judgment, requesting the trial court to declare valid the appointment of the five co-trustees pursuant to the Trust. The motion for partial summary judgment raised no further issues. In response, Preston opposed the motion and filed an exception of no right of action, challenging the two co-trustees' legal right to join in the motion for partial summary judgment.

Following a December 12, 2017 hearing, the trial court denied Preston's exception of no cause of action, but granted the motion for partial summary judgment in favor of Co-trustees Alexander and Johnson, approving Mrs. Marshall's appointment of the five co-trustees of the Trust as having been done in compliance with the Trust and the Louisiana Trust Code. In its oral reasons for judgment, the trial court noted that Preston had remedies in place that would allow him to adjust the co-trustees' compensation, subsequent to their appointment, if he believed it too high or to seek redress from the co-trustees, should they violate the fiduciary duty they owe him as the beneficiary. As to the issue regarding the appointment of the co-trustees, the trial court held that partial summary judgment was proper because (1) the Trust clearly gave Mrs. Marshall the authority to appoint co-trustees and (2) there were no genuine issues of material fact to suggest that the co-trustees were not disinterested individuals.

Following the trial court's oral ruling on December 12, 2017, Preston filed a motion for an appeal on January 3, 2018. Thereafter, on January 4, 2018, Co-trustees Alexander and Johnson filed a motion to have the trial court's judgment certified as a final judgment pursuant to La.Code Civ.P. art. 1915(B). On January 9, 2018, the trial court granted Preston's motion for appeal. On January 11, 2018, it rendered a written judgment and certified that it was a final judgment under La.Code Civ.P. art. 1915(B).

On appeal, Preston asserts the following assignments of error:

(1) The District Court erred in granting summary judgment despite the fact that Mrs. Marshall and the Co-Trustees seek relief to which they are not entitled.
(2) The District Court erred in not finding that a genuine issue of material fact exists regarding whether Mrs. Marshall properly exercised discretion in appointing the purported Co-Trustees.
(3) The District Court erred in not finding that a genuine issue of material fact exists regarding whether the compensation provision violates the terms of the trust instrument.
(4) The District Court erred in not finding that a genuine issue of material fact exists regarding whether the purported Co-Trustees are "disinterested individuals" as required by the trust instrument.

Our appellate review of a trial court's grant or denial of a motion for summary judgment is de novo , using the same criteria as the trial court. Gray v. Am. Nat'l Prop. & Cas. Co. , 07-1670 (La. 2/26/08), 977 So.2d 839.

Appellate courts review summary judgments de novo, using the same criteria as the trial court. Gray v. Am. Nat'l Prop. & Cas. Co. , 07-1670 (La. 2/26/08), 977 So.2d 839. In order to prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that he "is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3) ; Duncan v. U.S.A.A. Ins. Co. , 06-363, p. 4 (La. 11/29/06), 950 So.2d 544, 547. "A fact is 'material' when its existence or nonexistence may be essential to [the] plaintiff's cause of action." Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. "A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate." Smitko v. Gulf S. Shrimp, Inc. , 11-2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755.
When considering a motion for summary judgment, the court cannot "consider the merits, make credibility determinations, evaluate testimony[,] or weigh evidence." Prop. Ins. Ass'n of La. v. Theriot , 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014 (quoting Suire v. Lafayette City-Parish Consol. Gov't , 04-1459, p. 11 (La. 4/12/05), 907 So.2d 37, 48 ). Moreover, although summary judgments are now favored, "factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor." Willis v. Medders , 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

The Herbert & Lula Marie Fusilier Revocable Living Trust v. EnLink NGL Pipeline, LP , 17-33, pp. 3-4 (La.App. 3 Cir. 5/24/17), 220 So.3d 904, 907, writ denied , 17-1432 (La. 11/6/17), 229 So.3d 474 (alteration in original).

A party to a lawsuit "may move for summary judgment for all or part of the relief" sought, and the burden of proof thereon is on the moving party whose motion should "be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(1), (3). If the mover satisfies his burden, the burden then shifts to "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.Code Civ.P. art. 966(D)(1).

A review of the pertinent provisions of the Louisiana Trust Code, La.R.S. 9:1721 -2252, is essential to the proper analysis of the motion for summary judgment herein. As provided by the Trust Code, a trust is "the relationship resulting from the transfer of title to property to a person to be administered by him as a fiduciary for the benefit of another." La.R.S. 9:1731. The trustee "shall administer the trust solely in the interest of the beneficiary." La.R.S. 9:2082(A). The "trustee shall administer the trust as a prudent person would administer it. In satisfying this standard, the trustee shall exercise reasonable care and skill, considering the purposes, terms, distribution requirements, and other circumstances of the trust." La.R.S. 9:2090(A). "If two or more trustees have the same powers, each shall participate in the administration of the trust and use reasonable care to prevent a co-trustee from committing a breach of trust and shall compel him to redress a breach of trust." La.R.S. 9:2096.

The Trust Code further provides that "[t]he nature and extent of the duties and powers of a trustee are determined from the provisions of the trust instrument, except as otherwise expressly provided in this Code, and, in the absence of any provisions of the trust instrument, by the provisions of this Part and by law." La.R.S. 9:2061. Further, except as provided for in La.R.S. 9:2061 through 9:2066, "a trustee shall exercise only those powers conferred upon him by the provisions of the trust instrument or necessary or appropriate to carry out the purposes of the trust and are not forbidden by the provisions of the trust instrument." La.R.S. 9:2111. The only legal qualifications that a natural person must have in order to serve as a trustee are that they have the "full capacity to contract" and be a "citizen or resident alien of the United States[.]" La.R.S. 9:1783(A). Finally, the Trust Code provides that a trustee may only be removed from the position of trustee "in accordance with the provisions of the trust instrument or by the proper court for sufficient cause." La.R.S. 9:1789(A).

Assignment of Error Number One

In his first assignment of error, Preston argues that the trial court erred in granting partial summary judgment in favor of the co-trustees because they sought relief to which they clearly were not entitled. He claims that the relief sought, a declaratory judgment recognizing the legitimacy of Mrs. Marshall's appointment of the five co-trustees, is not available in a case where the answer to the question at issue is clearly provided by the Trust. We disagree, finding that Preston's argument is circuitous and without merit.

With regard to the appointment of co-trustees, the Trust provides that:

The Trustee shall be empowered to select and designate one or more disinterested individuals to serve as co-trustee and may designate a successor trustee should she cease or otherwise fail to serve as Trustee for any reason whatsoever. The selection and designation of any successor trustee shall be made by notarial act or last will and testament valid under laws of the State of Texas. Should the initial trustee fail to designate a successor, Preston L. Marshall shall succeed as trustee; provided, however, that he shall have no power to invade principal, borrow against trust assets, or accumulate income. Preston L. Marshall shall have the power to designate a Special Trustee to exercise prohibited powers six months following his or her appointment.

We note that if the act of appointing disinterested co-trustees, as permitted by the Trust, is a totally discretionary function of the trustee, Preston has no grounds to complain or contest her appointments. He can, as the trial court pointed out, challenge the co-trustees' actions at a later date, if the grounds for such challenge exist, but he cannot challenge the actual appointments. On the contrary, Preston vehemently contests Mrs. Marshall's appointments, asserting that the individuals chosen are not qualified and that they have ulterior motives, rendering them interested rather than disinterested parties. However, based upon the discretion afforded to Mrs. Marshall under the Trust and its provisions, allowing her to apply to the courts for instructions regarding any questions that might arise regarding the administration of the Trust, we find that her actions were indeed authorized. Preston's argument on the one hand that Mrs. Marshall cannot apply to the court for approval of her decision and on the other hand arguing that she abused her discretion in that same decision falls under the category of wanting to have his cake and eat it too. Accordingly, we find no merit in this assignment of error.

Assignment Of Error Number Two

In his second assignment of error, Preston argues that the trial court erred by finding that no genuine issue of material fact existed regarding whether Mrs. Marshall, as trustee, properly exercised her discretion in appointing the co-trustees. He asserts that the issue of the validity of the appointments is not proper for summary judgment as it involves questions of Mrs. Marshall's subjective intent and good or bad faith in appointing the co-trustees.

In arguing that the appointments are invalid for having been made in bad faith, Preston complains that the co-trustees were personally unknown to Mrs. Marshall or him prior to their appointments as co-trustees, that they had no appreciable financial background or expertise in the management of portfolios, that one admitted that he merely took online courses to educate himself on the role of a trustee, and that their acts of delegating the authority to accumulate or distribute income of the trust to Mrs. Marshall proves the lack of good faith in their appointments. As such, Preston asserts that there are genuine issues of fact present, and as this involves subjective intent, summary judgment was not appropriate.

The Trust provides Mrs. Marshall with general discretionary authority, giving her the "sole discretion to determine the manner, time, circumstances and conditions of the exercise of any right, power or authority vested in the Trustee." The Trust further gives her, as trustee, the power and authority to "select and designate one or more disinterested individuals to serve as co-trustee." The Trust sets forth no further qualifications or requirements for being a co-trustee. Accordingly, there is no requirement that a co-trustee be someone personally known to Mrs. Marshall or Preston, someone that Mrs. Marshall had previously met prior to their appointment, nor someone specially educated, well-versed, or experienced in financial matters or the management of portfolios.

In this instance, the five co-trustees meet the requirements of La.R.S. 9:1783 for being a trustee in that they are natural persons, who have the capacity to contract and are citizens of the United States. They further meet the only requirement set forth in the Trust, in that they are disinterested persons. Thus, we conclude that there is no genuine issue of material fact as to Mrs. Marshall's authority pursuant to the Trust Code and to the terms of the Trust in designating the five co-trustees or as to whether the appointed co-trustees are qualified to serve in that capacity.

Assignment of Error Number Three

In his third assignment of error, Preston argues that the compensation package specified by Mrs. Marshall for the co-trustees violates the terms of the Trust and, therefore, creates a material issue of fact such that summary judgment in regards to her selection of the five co-trustees should not have been granted. We find this argument to be without merit.

The sole issue before the trial court on the motion for summary judgment was whether Mrs. Marshall was authorized by the terms of the Trust to select the co-trustees and whether there was a genuine issue of material fact regarding the co-trustees' qualifications to serve in that capacity. While Preston argues that the co-trustees' compensation package, in and of itself, violates the terms of the Trust and, thus, creates a genuine issue of material fact, he failed to file a cross motion for summary judgment squarely placing that issue before the trial court. Nor is it properly before this court.

Louisiana Code Civil Procedure Article 966(F) provides that "summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time." As the issue of the co-trustees' compensation package was not before the trial court, we are precluded from addressing this issue on appeal. We further agree with the trial court that the law provides Preston with protections for adjusting the co-trustees' compensation subsequent to their appointment, if it is found that their compensation is too high, contrary to the terms of the Trust, or against Louisiana law, or if the co-trustees are found to have violated a fiduciary duty. Accordingly, we find no merit in this assignment of error.

Assignment of Error Number Four

In his final assignment of error, Preston argues that the compensation package provided to the co-trustees by Mrs. Marshall has changed them from "disinterested" to "interested" parties, as it may have provided them with the incentive to act in a way more advantageous to themselves rather than in the best interest of the beneficiary of the Trust. We find this argument to also be without merit.

In In re Eleanor Pierce (Marshall) Stevens Living Trust , 14-697, 14-827, 14-828 (La.App. 3 Cir. 2/18/15), 159 So.3d 1101, the trustee, Finley Hilliard, argued that the recognition of a "trust protector" by the settlor of a trust was against Louisiana's public policy, as it affected the ability of the trustee to act as a prudent administrator on behalf of the trust and its beneficiaries and because it might shift the trustee's loyalties from the beneficiaries to the trust protector, who wielded the power to dismiss the trustee. Interestingly, Preston was the designated trust protector in the Eleanor Pierce (Marshall) Stevens Living Trust.

In that matter, a separate panel of this court refused to hold that the mere possibility that a trustee might act in such a way as to defer to a trust protector's wishes rather than acting as a prudent trustee ipso facto makes such appointments void as against public policy. In doing so, this court noted the strong protections provided by the Trust Code to insure that a trustee acts in the interest of the beneficiaries, as detailed in the following:

For the reasons below, we decline to find that the appointment of a person to the office of trust protector runs contrary to public policy. Moreover, we note also that the office of trust protector is not a foreign concept in Louisiana and has been recognized in our Louisiana Civil Law Treatise.
"A trustee shall administer the trust solely in the interest of the beneficiary." La.R.S. 9:2082. When there is more than one beneficiary, the trustee must administer the trust for the benefit of all the beneficiaries. Id. In Albritton [v. Albritton ], 622 So.2d [709,] 713 [ (La.App. 1 Cir. 1993) ], the first circuit aptly explained:
the statutory provisions relative to the responsibilities of a trustee are rigid and hold the trustee to an even higher fiduciary responsibility to his beneficiary than that owed by a succession representative to heirs. The very word "trustee" implies the strongest obligation on the part of the trustee to be chaste in all dealings with the beneficiary.
"The duty of loyalty is the fundamental duty owed by a trustee as a fiduciary." Thomas v. Kneipp , 43,228, p. 7 (La.App. 2 Cir. 5/28/08), 986 So.2d 175, 181 (citing Albritton , 622 So.2d 709 ). "A provision of the trust instrument that purports to limit a trustee's duty of loyalty to the beneficiary is ineffective." La.R.S. 9:2062.
Although a trustee may, to an extent, become accountable to the trust protector, a trust protector can serve important functions in the administration of a trust. Inherent in the trust concept is that the settlor does not intend the trustee to treat the property as his own, despite the fact that title was conferred to the trustee. Instead, the settlor intends that the trustee manage the assets for the benefit of the beneficiaries.

In re Eleanor Pierce (Marshall) Stevens Living Trust , 159 So.3d at 1110.

Similarly, in the instant case, we find Preston's argument that the compensation provisions set forth by Mrs. Marshall in the appointment of the co-trustees ipso facto disqualifies the co-trustees as not being "disinterested," to be unpersuasive and insupportable. The co-trustees appointed by Mrs. Marshall are by the very definition of their titles entrusted to administer the Trust solely in the interest of the beneficiary or beneficiaries. La.R.S. 9:2082. As stated by the supreme court in Succession of Dunham , 408 So.2d 888, 900 (La.1981) :

[T]he statutory provisions relative to the responsibilities of a trustee are very rigid and hold the trustee to an even higher fiduciary responsibility to his beneficiary than that owed by a succession representative to heirs. The very word "trustee" implies the strongest obligation on the part of the trustee to be chaste in all dealings with the beneficiary.

Determining whether a trustee has complied with these obligations requires a review of his or her present actions in the performance of the duties incumbent on him or her as trustee. We cannot gaze into a crystal ball to envision potential acts imputable to these co-trustees such as to declare them disqualified to serve under the terms of the Trust. As the trial court correctly pointed out in its reasons for judgment, Preston has the right to question the compensation of the co-trustees in the future by specific challenge to the same or to challenge particular actions of the co-trustees as being in violation of their fiduciary duties, issues which were not before either the trial court or this court. It does not, however, serve as a per se reason to disqualify them in advance as being interested persons unqualified to act as co-trustees. Therefore, Preston's assignment of error is rejected as being without merit.

DISPOSITION

For the reasons set forth herein, the judgment of the trial court granting partial summary judgment in favor of Co-trustees Edward Alexander and Adam P. Johnson is affirmed, and the case remanded to the trial court for further proceedings. The costs of this appeal are assessed to Preston L. Marshall.

AFFIRMED.

Savoie, J, dissents with written reasons.

SAVOIE, J. dissents.

I respectfully dissent from the majority's opinion. First, the trial court's partial summary judgment declaring the validity of Mrs. Marshall's appointments of Dr. Wayne S. Thompson, Jr., Judge Lilynn Cutrer, and Dr. Karen Aucoin as co-trustees of the Harrier Trust is in error because none of these individuals are parties in this action. Louisiana Code of Civil Procedure article 1880 requires states that "[w]hen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration[.]" Moreover, there is no indication that the movers/appellees herein, Mr. Johnson or Pastor Alexander, have any authority to seek relief on behalf of Dr. Thompson, Judge Cutrer, or Dr. Aucoin. I further note that Ms. Marshall initially joined in the motion for summary judgment seeking the validity of her co-trustee appointments, but she was later permitted to withdraw as a mover of the motion, presumably because of rulings rendered in concurrent probate court proceedings in Texas.

I would also find that the co-trustee compensation package, regardless of its validity, creates a genuine issue of material fact as to whether the co-trustees appointed by Mrs. Marshall were in fact "disinterested" as required by the Trust documents. Compensation is provided to the co-trustees based upon a formula that takes into consideration the value of the Trust's assets, the value of the Trust's interests in other entities, and the value of gross Trust receipts. Whether this compensation package provides the co-trustees with an interest in the Trust's assets that would disqualify them as "disinterested" persons under the Trust documents is a factual question that is improper for summary judgment determination.

In addition, fact issues concerning whether Mrs. Marshall's appointments of the five co-trustees constitute an abuse of her discretion preclude a summary judgment finding that the appointments were valid. While the Trust documents provide Mrs. Marshall with the "sole discretion to determine the manner, time, circumstances and conditions of the exercise of any right, power or authority vested in" her, that discretion is not unfettered. Louisiana Revised Statutes 9:2115 provides that "[i]f discretion is conferred upon a trustee with respect to the exercise of a power, its exercise shall not be subject to control by the court, except to prevent an abuse of discretion." Therefore, any abuse of discretion on the part of Mrs. Marshall in connection with her co-trustee appointments could result in a finding that the appointments were invalid. There is evidence in the record concerning the excessive nature of the compensation package that Mrs. Marshall provided to the co-trustees. While the validity of the compensation package is not before this court, the compensation package that Mrs. Marshall chose to provide to the co-trustees could be considered by a fact finder as relevant evidence of her intent, motive, and judgment underlying her decision to appoint the co-trustees, and whether she abused her discretion in appointing them. Therefore, summary judgment concerning the validity of the co-trustee appointments is precluded for this reason as well.

For the reasons stated above, I would reverse the partial summary judgment rendered in this case.

      Mr. Marshall passed away on June 20, 2006.

      See In re: Harrier Trust , 17-103 (La.App. 3 Cir. 2/17/17) (an unpublished writ); In re: Harrier Trust , 18-466 (La.App. 3 Cir. 6/20/18) (an unpublished writ); In re: Harrier Trust , 18-612 (La.App. 3 Cir. 8/7/18) (an unpublished writ); In re: Harrier Trust , 18-651 (La.App. 3 Cir. 10/17/18), 259 So.3d 488 ; and In re: Harrier Trust , 18-667 (La.App. 3 Cir. 10/17/18), 259 So.3d 402.

      The pending appeal concerns the preliminary injunction that is the subject matter of In re: Harrier Trust , 18-667 (La.App. 3 Cir. 10/17/18), 259 So.3d 402.

      The September 19, 2017 court minutes indicate that Mrs. Marshall was allowed by the trial court to withdraw as a mover of the motion for partial summary judgment.

      Although the appeal was granted in this matter prior to the rendition of a final judgment, this defect was cured by the signing of the final judgment on January 11, 2018. See Overmier v. Traylor , 475 So.2d 1094 (La.1985).

      In July 2017, a probate court in Harris County, Texas rendered a temporary injunction against Mrs. Marshall that, inter alia, enjoined her from making any additional payments to her appointed co-trustees of the Harrier Trust, from taking any further action to approve or ratify the appointments of the co-trustees, and from taking any action in conjunction with the co-trustees regarding the Harrier Trust. The September 17, 2017 court minutes in the instant case show that Mrs. Marshall withdrew as a mover of the subject motion that sought summary judgment concerning the validity of her co-trustee appointments.

      The record contains an affidavit of a Certified Public Accountant that reflects the projected collective co-trustee fees for the Harrier Trust over a 28-year period, using different scenarios, and discounted to present value, as ranging between $ 90,232,172 and $ 282,484,032. In addition, there is evidence suggesting that the compensation package is "beyond any measure of being competitive with the market, and bears no relationship between the amount of the anticipated time or work that would conceivably be expended by these alleged trustees for the compensation to be received[,]" and is not in the beneficiary's best interest.
      I further note that on November 7, 2017, the Texas probate court rendered an order granting temporary injunctive relief that, inter alia, enjoined the co-trustees of the Harrier Trust from receiving compensation in accordance with the December 2016 appointment documents, taking any action that could affect the Harrier Trust, "attempting to circumvent this [c]ourt's jurisdiction over the Harrier ... Trust by ... seeking validation of the compensation provisions set out in the December 2016 Appointment Documents[,]" and from assisting Mrs. Marshall in any litigation against Preston concerning the Harrier Trust. Also on November 7, 2017, the probate court granted Preston's motion for summary judgment in part, finding that the compensation package violated the terms of the Harrier Trust document.


author: PETTIGREW, J.

text:
    Russell COLE and Kim Cole v. Allison COLE
    NO. 2018 CU 0523
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered September 21, 2018
    ANGELA COX WILLIAMS, JESMIN BASANTI FINLEY, SLIDELL, LA, ATTORNEYS FOR PLAINTIFFS-APPELLEES, RUSSELL COLE AND KIM COLE
    RICHARD DUCOTE, COVINGTON, LA, ATTORNEYS FOR DEFENDANT-APPELLANT, ALLISON COLE
    BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
   PETTIGREW, J.

At the center of this dispute is a purported stipulated judgment ("the stipulated judgment") between Allison Cole, the widowed mother of two young daughters, and Russell and Kim Cole, her deceased husband's parents, allowing for grandparent visitation. Ms. Cole challenges the trial court's judgment sustaining the grandparents' exception raising the objection of no cause of action and dismissing, with prejudice, Ms. Cole's petition to annul the stipulated judgment. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

After the death of their son John Cole, Russell and Kim Cole filed a petition for visitation, alleging that Ms. Cole had refused to allow them to visit with their granddaughters. In response, Ms. Cole filed exceptions raising the objections of non-conformity, vagueness, and no cause of action. On the date the exceptions were set for hearing, Ms. Cole and the grandparents were all present and represented by counsel. After a conference in chambers, counsel for the grandparents advised the trial court that there was a "stipulation on all matters" that would "render the exceptions filed by [Ms.] Cole moot." At that time, the stipulation was read into the record by the grandparents' counsel, and all parties indicated their full understanding of the stipulation. However, when the trial court inquired as to the parties' understanding of the stipulation's binding effect on them, there is no indication that Ms. Cole expressed her acquiescence thereto. Rather, only the grandparents answered in the affirmative when the trial court asked, "Does everybody understand that?"

On March 14, 2017, the trial court signed the stipulated judgment, granting the grandparents specific periods of weekend, summer, and holiday visitation. The stipulated judgment further provided that Ms. Cole was precluded from scheduling any activities for the children during the grandparents' visitation. Moreover, while the stipulated judgment afforded the grandparents the option to call and/or text the children, it prohibited Ms. Cole from calling her children during the grandparents' visitation, absent an emergency.

Thereafter, Ms. Cole filed a petition to annul the stipulated judgment, alleging, among other things, that she never consented to the stipulated judgment and that her counsel intentionally and fraudulently misrepresented the nature of the proceedings to cover up her own negligence. Ms. Cole acknowledged that she "very reluctantly accepted" the terms of the stipulated judgment, but that her agreement was not based on any valid consent. Rather, Ms. Cole asserted her consent was vitiated by error, fraud, and duress within the purview of La. Code Civ. P. arts. 2001 et seq. Ms. Cole further alleged that when the terms of the stipulated judgment were read into the record, she was told by her counsel that she had to say that she agreed.

In response thereto, the grandparents filed an exception raising the objection of no cause of action and a motion to strike, which were set for hearing. The grandparents argued there was no evidence of ill practice or fraud by Ms. Cole's counsel at the February 22, 2017 hearing and that Ms. Cole's allegations of coercion were ludicrous and insufficient to rise to the level required to vitiate her consent based on duress, ill practices, or fraud. They maintained that Ms. Cole's petition contained no argument that gave rise to a cause of action to annul the March 14, 2017 stipulated judgment. Moreover, the grandparents alleged that Ms. Cole's statements in the petition concerning their deceased son were inflammatory, insulting, and untrue and should be stricken from the record. On November 15, 2017, the trial court issued detailed written reasons for judgment and signed a judgment sustaining the no cause of action exception and granting the motion to strike with respect to the allegations contained in Paragraph 5 of Ms. Cole's petition to annul. Ms. Cole's appeal of this judgment followed.

RULE TO SHOW CAUSE

(Assignments of Error A & C)

After Ms. Cole appealed, this court issued a rule to show cause order indicating the November 15, 2017 judgment appeared to lack appropriate decretal language. Ms. Cole responded by filing a motion to stay her appeal pending the remand of the matter to the trial court for the entry of an amended judgment. On May 29, 2018, this court denied the motion to stay appeal, indicating that it had already issued an interim order to the trial court. In said interim order issued on May 29, 2018, the matter was remanded to the trial court for the entry of an amended judgment, containing precise, definite, and certain language regarding the relief granted.

However, prior to this order being issued, the trial court signed an amended judgment on May 16, 2018, clarifying the court's rulings on the no cause of action exception and the motion to strike, and dismissing Ms. Cole's petition to annul for failure to state a cause of action. The appellate record herein was supplemented with the May 16, 2018 amended judgment on May 30, 2018. The November 15, 2017 judgment, as amended by the May 16, 2018 judgment, contains the appropriate decretal language to be a valid final judgment, i.e., it names the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted. See Jenkins v. Recovery Technology Investors, 2002-1788 (La. App. 1 Cir. 6/27/03), 858 So.2d 598, 600.

Because the November 15, 2017 judgment lacked decretal language actually dismissing Ms. Cole's petition for nullity, it was an interlocutory judgment. See State in Interest of J.C., 2016-0138 (La. App. 1 Cir. 6/3/16), 196 So.3d 102, 107. Accordingly, Ms. Cole's motion for appeal was premature since the trial court had not signed a final judgment at the time the motion was granted. See La. Code Civ. P. art. 1918(B). Any defect arising from a premature motion for appeal is cured, however, once a final judgment has been signed. Therefore, when the trial court signed a final judgment on May 16, 2018, which contained proper decretal language, the prematurity of her motion for appeal was cured. Overmier v. Traylor, 475 So.2d 1094, 1094-1095 (La. 1985) (per curiam) ("once the final judgment has been signed, any previously existing defect has been cured, and there is no useful purpose in dismissing an otherwise valid appeal"); Chauvin v. Chauvin, 2010-1055 (La. App. 1 Cir. 10/29/10), 49 So.3d 565, 568 n.1. Accordingly, we maintain the appeal. See Goux v. St. Tammany Parish Government, 2013- 1387 (La. App. 1 Cir. 10/24/14), 156 So.3d 714, 719-720, writ not considered, 2014- 2471 (La. 2/13/15), 158 So.3d 828.

NO CAUSE OF ACTION

(Assignments of Error B & D)

Ms. Cole assigns error to the trial court's judgment maintaining the grandparents' no cause of action exception. Ms. Cole argues further that the trial court erred in failing to allow her an opportunity to amend her petition to annul to attempt to state a cause of action pursuant to La. Code Civ. P. art. 934.

The function of an exception raising the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993) ; Copeland v. Treasure Chest Casino, L.L.C., 2001-1122 (La. App. 1 Cir. 6/21/02), 822 So.2d 68, 70. All facts pled in the petition must be accepted as true. Rebardi v. Crewboats, Inc., 2004-0641 (La. App. 1 Cir. 2/11/05), 906 So.2d 455, 457. Furthermore, the facts shown in any documents annexed to the petition must also be accepted as true. B & C Elec., Inc. v. East Baton Rouge Parish School Bd., 2002-1578 (La. App. 1 Cir. 5/9/03), 849 So.2d 616, 619 ; see also La. Code Civ. P. art. 853 ("A copy of any written instrument that is an exhibit to a pleading is a part thereof."). The exception is triable on the face of the pleading, and for the purpose of determining the issues raised by the exception, the well-pleaded facts in the pleading must be accepted as true. Richardson v. Richardson, 2002-2415 (La. App. 1 Cir. 7/9/03), 859 So.2d 81, 86. Thus, the only issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Perere v. Louisiana Television Broadcasting Corp., 97-2873 (La. App. 1 Cir. 11/6/98), 721 So.2d 1075, 1077.

The only documentary evidence that may be considered on an exception raising the objection of no cause of action is that which has been annexed to the petition, unless the evidence is admitted without objection to enlarge the petition.

Woodland Ridge Ass'n v. Cangelosi, 94-2604 (La. App. 1 Cir. 10/6/95), 671 So.2d 508, 511. In reviewing a trial court's ruling sustaining an exception raising the objection of no cause of action, the appellate court conducts a de novo review. The exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Fink v. Bryant, 2001-0987 (La. 11/28/01), 801 So.2d 346, 349 ; B & C Elec., Inc., 849 So.2d at 619. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim that would entitle him to relief. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity to present evidence at trial. Richardson, 859 So.2d at 86. The question, therefore, is whether, in the light most favorable to the plaintiff, and with every doubt resolved in his behalf, the petition states any valid cause of action for relief. Copeland, 822 So.2d at 70.

When a petition states a cause of action as to any ground or portion of the demand, an exception raising the objection of no cause of action must be overruled. Thus, if the petition sets forth a cause of action, none of the other causes of action may be dismissed based on an exception pleading the objection of no cause of action. Copeland, 822 So.2d at 70. In reviewing the petition to determine whether a cause of action has been stated, the court must, if possible, interpret it to maintain the cause of action. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated. Livingston Parish Sewer Dist. No. 2 v. Millers Mut. Fire Ins. Co. of Texas, 99-1728 (La. App. 1 Cir. 9/22/00), 767 So.2d 949, 952, writ denied, 2000-2887 (La. 12/8/00), 776 So.2d 1175. However, because Louisiana retains a system of fact pleading, mere conclusory statements in the petition, without supporting facts, are insufficient to set forth a cause of action. Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127,131.

When the grounds of the peremptory exception raising the objection of no cause of action may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed. La. Code Civ. P. art. 934. The decision to allow amendment is within the sound discretion of the trial court. LeBlanc v. Alfred, 2015- 0397 (La. App. 1 Cir. 12/17/15), 185 So.3d 768, 777.

It is clear from a review of the transcript of the October 16, 2017 hearing that the parties were in agreement that the February 22, 2017 transcript was admitted without objection to enlarge the petition. See Woodland Ridge Ass'n, 671 So.2d at 511. Counsel for both sides referred to said transcript and acknowledged that it had been filed into the record for the court's review.

Ms. Cole contends that in the light most favorable to her, the March 14, 2017 stipulated judgment, allegedly derived from the February 22, 2017 hearing, is invalid and unenforceable as not only did she fail to consent to the judgment on the record, but any consent allegedly given by her was vitiated by the fraud and ill practices of her attorney. Ms. Cole argues that this is a basis for nullity pursuant to La. Code Civ. P. art. 2004(A), which provides that "[a] final judgment obtained by fraud or ill practices may be annulled." However, it is well established in our jurisprudence that improper representation or misconduct of the movant's attorney is not a legally recognized basis for a nullity action. See Stroscher v. Stroscher, 2001-2769 (La. App. 1 Cir. 2/14/03), 845 So.2d 518, 524 ; DeBaillon v. Consolidated Operating Co., 2007-1117 (La. App. 3 Cir. 1/30/08), 975 So.2d 682, 686 ; and Melancon v. D & M Enterprises, 95-0644 (La. App. 4 Cir. 9/28/95), 662 So.2d 54, 57. Thus, the allegations of misrepresentation and duress on the part of Ms. Cole's attorney do not set forth a cause of action herein. As the law affords no remedy under the facts alleged regarding representation and there is no indication that the petition could be amended to provide a valid cause of action, the claims of Ms. Cole were properly dismissed for failure to state a cause of action.

MOTION TO STRIKE

(Assignment of Error E)

Louisiana Code of Civil Procedure Article 964 provides: "The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter." The granting of a motion to strike pursuant to Article 964 rests in the sound discretion of the trial court and is reviewed under the abuse of discretion standard. Pitre v. Opelousas Gen. Hosp., 530 So.2d 1151, 1162 (La. 1988). See also Detillier v. Borne, 2015-129 (La. App. 5 Or. 9/23/15), 176 So.3d 669, 671. Motions to strike are viewed with disfavor and are infrequently granted. They are disfavored because striking a portion of a pleading is a drastic remedy, and because they are often sought by the movant simply as a dilatory tactic. However, a motion to strike is proper if it can be shown that the allegations being challenged are so unrelated to a plaintiff's claims as to be unworthy of any consideration and that their presence in the pleading would be prejudicial to the moving party. Carr v. Abel, 2010-835 (La. App. 5 Cir. 3/29/11), 64 So.3d 292, 296, writ denied, 2011-0860 (La. 6/3/11), 63 So.3d 1016. See also Smith v. Gautreau, 348 So.2d 720, 722 (La. App. 1 Cir. 1977). A motion to strike is a means of clearing up the pleadings, not a means of eliminating causes of action or substantive allegations. Hicks v. Steve R. Reich, Inc., 38,424 (La. App. 2 Cir. 5/12/04), 873 So.2d 849, 852 ; Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 2001-0345 (La. App. 3 Cir. 6/20/01), 790 So.2d 93, 98.

Because the source of Article 964 is found in Rule 12(f) of the Federal Rules of Civil Procedure, we look to federal jurisprudence to assist us in analyzing Article 964. Smith, 348 So.2d at 722. The terms "redundant, immaterial, impertinent, or scandalous matter" have been defined in at least one federal case, Marceaux v. Lafayette Consol. Government, 6:12-01532 (W.D. La. 10/18/12), 2012 WL 5197667 (unpublished), wherein the court stated:

Redundant matter consists of allegations that constitute a needless repetition of other averments in the pleading. Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded. Immateriality is established by showing that the challenged allegations "can have no possible bearing upon the subject matter of the litigation." Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question; while scandalous matter is that which improperly casts a derogatory light on someone, most typically on a party to the action. "The granting of a motion to strike scandalous matter is aimed, in part, at avoiding prejudice to a party by preventing a jury from seeing the offensive matter or giving the allegations any other unnecessary notoriety inasmuch as, once filed, pleadings generally are public documents and become generally available."

Id. (footnotes with citations omitted); see also Bayou Fleet Partnership, LLC v. St. Charles Parish, 2010-1557 (E.D. La. 7/8/11), 2011 WL 2680686 (unpublished).

In this matter, the grandparents sought to have stricken from the record what they alleged was an inflammatory, insulting, and untrue character assassination of their deceased son John as well as comments made about them. The trial court granted the motion to strike the statements contained in Paragraph 5, subparagraphs A through I, finding that the statements were hearsay. On appeal, Ms. Cole argues that the "information characterized by the grandparents as 'inflammatory, insulting, and untrue statements regarding them and their relationship to their children' is clearly relevant to the best interests of the children" ... "as well as to Ms. Cole's ability to raise her children as would any other parent-unimpeded by problematic interlopers." We have reviewed the record before us and find no abuse of discretion in the trial court's ruling granting the grandparents' motion to strike the statements contained in Paragraph 5 of Ms. Cole's petition to annul.

DECREE

For the above and foregoing reasons, we affirm the trial court's May 16, 2018 judgment in all respects. We assess all costs associated with this appeal against appellant, Allison Cole.

APPEAL MAINTAINED; AFFIRMED.

Chutz, J. concurs.

      According to the record, Ms. Cole is represented by new counsel on appeal.

      We note that the judgment makes reference to a February 2, 2017 hearing. However, it is clear from the minute entry and the transcript that the hearing occurred on February 22, 2017.

      Federal Rule of Civil Procedure 12(f) provides, in pertinent part: "The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."


author: HIGGINBOTHAM, J.

text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, K/D/S Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2018 CA 0244
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: October 11, 2018 Rehearing Denied December 13, 2018
    James C. Percy, Kevin O. Ainsworth, Baton Rouge, LA, Brett S. Venn, New Orleans, LA, Attorneys for Plaintiffs/Appellees, Pontchartrain Natural Gas System, K/D/S Promix, L.L.C., and Acadian Gas Pipeline System
    Glen E. Mercer, Kourtney T. French, New Orleans, LA, Attorneys for Third-Party Defendants/Appellees, Zurich American Ins. Co., Steadfast Ins. Co., and American Guarantee & Liability Ins. Co.
    James M. Garner, Leopold Z. Sher, Peter L. Hilbert, Jr., Martha Y. Curtis, Jeffrey D. Kessler, Amanda R. Schenck, New Orleans, LA, Theodore L. Jones, Baton Rouge, LA, Robert Ryland Percy, III, Gonzales, LA, Eric J. Mayer, Houston, TX, Travis J. Turner, Gonzales, LA, Attorneys for Defendant-Appellant, Texas Brine Company, LLC
    BEFORE: McCLENDON, HIGGINBOTHAM, AND HOLDRIDGE, JJ.
   HIGGINBOTHAM, J.

This appeal involves one of the many disputes related to the Bayou Come sinkhole that appeared in Assumption Parish in August 2012. The issues surrounding this particular appeal concern coverage provided by insurance policies that pre-date the occurrence of the sinkhole and whether the insurance companies involved have a duty to defend the main defendant, Texas Brine Company, LLC.

BACKGROUND

The plaintiffs in the underlying litigation, Pontchartrain Natural Gas System, K/D/S Promix, L.L.C., and Acadian Gas Pipeline (collectively referred to as "Pontchartrain"), are the owners and operators of natural gas pipelines and storage facilities in the vicinity of property where the Napoleonville Salt Dome is located. The defendant, Texas Brine Company, LLC ("Texas Brine"), operates brine production wells on the property above the salt dome. Pontchartrain filed suit against Texas Brine and its insurers, some of which are Zurich American Insurance Company, Steadfast Insurance Company, and American Guarantee and Liability Insurance Company (collectively referred to as "Zurich").

By means of three supplemental and amending petitions, Pontchartrain alleged that on August 3, 2012, a sinkhole was caused by the failure of a salt cavern connected with Texas Brine's brine production well known as Oxy Geismer # 3 Well ("OG3"), and that the sinkhole damaged Pontchartrain's pipelines and storage facilities. In each of the amended petitions, Pontchartrain asserted that Texas Brine's actions caused instability and subsidence underground that led to the sinkhole that caused physical damage to its pipelines and storage facilities. In response to Pontchartrain's lawsuit, Texas Brine filed third-party demands against many parties and other insurers not relevant to this appeal, and specifically sought defense and indemnity from Zurich pursuant to insurance policies issued to Texas Brine between March 2009 and March 2012, prior to the development of the sinkhole in August 2012. Zurich has provided a defense and indemnity to Texas Brine with respect to sinkhole claims under the policies that were in effect on the date of the sinkhole, and those policies are no longer at issue because they have been exhausted. This particular appeal concerns the "pre-2012" policies issued by Zurich to Texas Brine.

After much discovery, Zurich eventually filed motions for summary judgment against Pontchartrain and Texas Brine, claiming that Pontchartrain's claims for any potential pre-2012 damage and insurance coverage by Zurich should be dismissed with prejudice. Zurich maintained that Pontchartrain's claims for damages were connected only with the emergence of the sinkhole in August 2012, and that although Pontchartrain had attempted to make a "damage due to subsidence" argument, there simply was no proof, only speculation, concerning any pre-sinkhole damages. Zurich primarily relied on admissions made by Pontchartrain during the discovery process, that Pontchartrain had no evidence of pre-sinkhole damage, that Pontchartrain was unaware of any damage to its pipelines and storage facilities prior to the emergence of the sinkhole, and that Pontchartrain was not actually seeking any pre-sinkhole damages. Thus, Zurich argued that none of the pre-2012 policies were triggered since property damage did not occur during the effective dates of any of the pre-2012 policy periods and, therefore, they had no duty to indemnify or defend Texas Brine pursuant to the pre-2012 policies that had clearly expired five months before the sinkhole appeared.

Texas Brine opposed Zurich's motions for summary judgment, arguing that the motions were premature as discovery was still ongoing and that there was no conclusive evidence that Pontchartrain's damages did not occur prior to the emergence of the sinkhole. Texas Brine relied on experts' affidavits based on an expert's report suggesting that there was soil movement in the sinkhole area prior to the emergence of the sinkhole, and that movement could have damaged Pontchartrain's pipelines, thereby triggering the pre-2012 Zurich policies. Texas Brine also contended that it had ongoing third-party claims against Zurich that remained. Pontchartrain did not substantively oppose Zurich's motions for summary judgment. Zurich objected to Texas Brine's reliance on expert testimony by filing motions to strike the expert report and the expert's affidavits. Further, Zurich argued that because Pontchartrain undisputedly disavowed seeking damages for property damage that occurred prior to the development of the sinkhole in August 2012, any expert testimony speculating as to hidden pre-sinkhole damage was irrelevant, inadmissible, and did not identify any genuine issue of material fact.

On April 24, 2017, the district court heard Zurich's motions for summary judgment at the same hearing as many other motions and exceptions involving multiple parties and related district court numbers in this ongoing, complex litigation. Argument was heard regarding Zurich's pre-2012 insurance policies. Several other insurance companies of pipeline companies with claims against Texas Brine were arguing the same motions in different district court numbers at the same hearing. Zurich objected on the record as to the admissibility of Texas Brine's expert report and affidavits. The district court took the matter under advisement, and on May 23, 2017, the court issued reasons for judgment, finding that the pre-2012 policies only covered property damage that occurred during the policy periods, not afterwards, and that Pontchartrain had not alleged any pre-sinkhole damage to their pipelines or storage facilities nor was Pontchartrain seeking pre-sinkhole damages.

A judgment was signed on September 13, 2017, reflecting the district court's findings, granting summary judgment in favor of Zurich as to Pontchartrain's claims only and dismissing Pontchartrain's direct action claims against Zurich with prejudice. Further, the district court specifically denied Zurich's motion for summary judgment against Texas Brine, finding that a genuine issue of material fact existed as to whether Zurich owed Texas Brine a duty to defend against the possible manifestation of pre-2012 damages on the remaining third-party demands. Texas Brine appealed the judgment insofar as it dismissed Pontchartrain's direct action claims against Zurich. Zurich filed a motion to dismiss and stay the appeal for lack of jurisdiction and, alternatively answered Texas Brine's appeal, seeking reversal of the part of the district court's ruling on Zurich's duty to defend Texas Brine since a judicial determination had been made that the pre-2012 policies did not provide any potential coverage for Pontchartrain's claims for indemnity under the policies.

APPELLATE JURISDICTION

The judgment at issue dismissed all of the direct action claims in Pontchartrain's principal demand against Zurich; however, it did not dismiss the third-party demands filed by Texas Brine against Zurich. Thus, Zurich moves this court to dismiss Texas Brine's appeal of what appears to be a partial final judgment that did not dispose of all claims against Zurich since Texas Brine's third-party demands against Zurich still remain. Since the judgment was not designated as final and appealable by the district court, Zurich argues there is no appealable judgment for this court to consider under its appellate jurisdiction.

Texas Brine opposes the motion to dismiss, asserting that the judgment is appealable under La. Code Civ. P. art. 1915(A)(1), because it dismisses all of Pontchartrain's direct action claims against Zurich. Texas Brine further argues that the judgment is appealable under La. Code Civ. P. art. 1915(A)(3), because the final judgment between Pontchartrain and Zurich affects Texas Brine's third-party demands against Zurich. Thus, Texas Brine maintains that certification of the judgment as final and appealable was not necessary.

After further review by this merits panel, we find that the judgment is final and appealable without the need for designation, pursuant to La. Code Civ. P. art. 1915(A)(3) and well-established jurisprudence. In Estate of Kirsh v. Blanchard, 2011-1835 (La. App. 1st Cir. 8/9/12), 2012 WL 3228973, *3 (unpublished opinion), writ denied, 2012-2502 (La. 1/18/13), 107 So.3d 632, this court discussed a similar judgment. In that case we noted that Article 1915(A)(3) provides that a final judgment may be rendered and signed by the district court when the court grants a motion for summary judgment as provided by Articles 966 through 969 of the Code of Civil Procedure, but not including a summary judgment granted pursuant to Article 966(E).

Louisiana Code of Civil Procedure article 966(E) states in part that a "summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case." In this case, the summary judgment that was rendered does not qualify as an Article 966(E) judgment, because all of the principal demand claims of Pontchartrain against Zurich were dismissed with prejudice. Thus, we find that no Article 1915(B)(1) certification was required, and the summary judgment rendered in favor of Zurich is final and appealable under Article 1915(A)(3) and Article 1911(B), which provides that an appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated.

Further, while generally an appeal may not be taken from the denial of a motion for summary judgment pursuant to La. Code Civ. P. art. 968, when there is an appeal from a final judgment, i.e. , a district court's grant of summary judgment, an interlocutory ruling may also be reviewed by the appellate court. See Lambert Gravel Co., Inc. v. Parish of West Feliciana, 2015-1225 (La. App. 1st Cir. 9/20/16), 234 So.3d 889, 895-896. Therefore, we will consider whether the district court erroneously denied Zurich's motion for summary judgment on the duty to defend issue. Consequently, we deny Zurich's motion to dismiss as well as the motion to stay the appeal. We now consider the merits of Texas Brine's appeal and Zurich's answer to the appeal.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Crosstex Energy Services, LP v. Texas Brine Company, LLC, 2017-0895 (La. App. 1st Cir. 12/21/17), 240 So.3d 932, 935, writ denied, 2018-0145 (La. 3/23/18), 238 So.3d 963 (hereafter referred to as " Crosstex I "). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. Code Civ. P. art. 966(A)(4).

The burden of proof on a motion for summary judgments rests on the mover. But if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion, 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. Instead, the mover must 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 then 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. Code Civ. P. art. 966(D)(1).

Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Crosstex I, 240 So.3d at 936. Thus, appellate courts ask the same questions: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id. 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. Id. Whether an insurance policy provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. Id.

LAW AND ANALYSIS

It is undisputed that Zurich provided pre-sinkhole insurance policies to Texas Brine under three annual pre-2012 policy periods effective from March 1, 2009, through March 1, 2012. In support of its motions for summary judgment, Zurich filed an affidavit of a Zurich Claim Specialist, referencing and attaching pertinent excerpts from the three pre-2012 Zurich policies at issue. Generally, the pre-2012 Zurich policies provide coverage only for damages because of "property damage" that occurs during the policy period , as follows, with emphasis added:

SECTION I - COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damaged because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply ....
b. This insurance applies to "bodily injury" and "property damage" only if:
(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory";
(2) The "bodily injury" or "property damage" occurs during the policy period ; ...
c. "Bodily injury" or "property damage" which occurs during the policy period and was not, prior to the policy period, known to have occurred by any insured ...
d. "Bodily injury" or "property damage" will be deemed to have been known to have occurred at the earliest time when any insured ...
(3) Becomes aware by any other means that "bodily injury" or "property damage" has occurred or has begun to occur.
* * *

Further, the pre-2012 Zurich policies define an "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Additionally, "property damage" is defined as:

a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it.
* * *

The Zurich pre-2012 policies clearly and unambiguously provided coverage for property damage only if it occurred during the policy period. It is undisputed that no pre-2012 policy was in effect on the date that the sinkhole appeared, August 3, 2012. However, Texas Brine argues that while Pontchartrain may have discovered its pipeline damage on August 3, 2012, there are genuine issues of material fact as to whether hidden damage occurred before then, due to the subsidence and other non-visible underground damage in the years before the sinkhole became visible. According to Texas Brine, the mere possibility that Pontchartrain could have sustained damage during the pre-2012 Zurich policy periods precludes summary judgment on Zurich's motions for summary judgment, including on the issue of Zurich's duty to defend Texas Brine's third-party demands. To support its opposition, Texas Brine relied upon three expert opinions.

This is not the first time that Texas Brine has made these arguments. In the Crosstex I case referenced earlier and in a related case, Crosstex Energy Services, LP v. Texas Brine Company, LLC, 2017-0863 (La. App. 1st Cir. 12/21/17), 240 So.3d 1024, writ denied, 2018-0144 (La. 3/23/18), 238 So.3d 962 ("Crosstex II "), Texas Brine made the same arguments involving the same Zurich pre-2012 policies in Crosstex I and AIG Insurers' pre-2012 policies in Crosstex II, and referencing the same expert report and experts' affidavits. The only difference was that the main plaintiff in the underlying litigation in those cases was EnLink f/k/a Crosstex Energy Services, another natural gas pipeline company whose pipeline traversed the edge of the salt dome. In both Crosstex I and Crosstex II, as well as the case sub judice, Texas Brine argues that the pre-2012 policies do not limit coverage to property damage that manifests itself during the policy period, but should be interpreted to cover possible hidden damage to the pipelines that may have resulted from earth movement that may have occurred during the pre-2012 policy periods. In Crosstex I , this court stated:

To support its opposition to the summary judgment, Texas Brine filed three expert opinions. The first expert, William Barnhart, opined that [in SAR] analysis, a technique used to observe active ground surface deformation, was consistent with ground surface subsidence near the salt dome from 2007 through 2011. The second expert, John Carico, opined that pre-2012 earth movement in the Bayou Come area "could have" damaged EnLink's pipeline earlier than March 1, 2012. The third expert, Peter Knowe, opined that, "if" pre-2012 earth movement damaged EnLink's pipeline, such hidden damage would be covered under pre-2012 occurrence policies, even if the sinkhole did not appear until 2012.
We first note that, under the "eight-comers rule," Texas Brine's experts' opinions are irrelevant to determining Zurich's duty to defend Texas Brine against EnLink's claims. It is EnLink's allegations that determine Zurich's duty to defend, and Texas Brine cannot use expert opinions to add to EnLink's allegations, or to dictate a certain interpretation of EnLink's allegations, in its attempt to defeat summary judgment on the duty to defend issue. Further, even if we did consider the expert opinions, they do not create a factual dispute as to whether EnLink sustained property damage during any of the specific, relevant policy periods, but only speculation that such could have occurred before March 1, 2012.

Crosstex I, 240 So.3d at 937-38 (citations omitted and footnote added). See also Crosstex II, 240 So.3d at 1030.

This court went on to review the plaintiffs' petitions in Crosstex I and Crosstex II to determine if there were any allegations of property damage occurring during any of the pre-2012 policy periods. This court found that the petitions in Crosstex I, 240 So.3d at 938-39, and Crosstex II, 240 So.3d at 1031-32, did not bring the plaintiffs' claims within the scope of the insurers' duty to defend Texas Brine, finding no allegations of hidden damage to the plaintiffs' pipelines due to subsidence or other non-visible underground damage at any time before the sinkhole became visible on August 3, 2012. In other words, the insurers' duty to defend was never triggered, because the plaintiffs had not alleged that property damage occurred during a relevant policy period.

Similarly, after a thorough de novo review of the record in this appeal, we find that Zurich met its initial burden of pointing to an absence of factual support for an element essential to Texas Brine's indemnity claims under Zurich's pre-2012 policies. Pontchartrain's allegations and admissions made during discovery make it clear that Pontchartrain was not ever seeking pre-sinkhole damages, because it was not aware of any damage to its pipelines and storage facilities prior to the emergence of the sinkhole. Therefore, none of Zurich's pre-2012 policies were triggered since the alleged property damage did not occur during the effective dates of the pre-2012 policy periods. Once Zurich demonstrated this lack of evidence, the burden shifted to Texas Brine to specifically show evidence that Pontchartrain had alleged/admitted any property damage that occurred during a relevant policy period. See La. Code Civ. P. arts. 966(D)(1) and 967(B). Since Texas Brine merely relied on speculative expert opinions extraneous to Pontchartrain's allegations and admissions, there is no genuine issue of material fact, and Zurich is entitled to summary judgment against Pontchartrain as a matter of law. See Crosstex I, 240 So.3d at 937-38 ; Crosstex II, 240 So.3d at 1032.

Accordingly, we find that the district court properly granted summary judgment in favor of Zurich, dismissing the direct action claims of Pontchartrain with prejudice. Further, for the same reasons set out in Crosstex I and Crosstex II , we find that Pontchartrain's allegations and admissions do not bring its claims within the scope of Zurich's duty to defend Texas Brine in this case. Zurich's duty to defend Texas Brine pursuant to the pre-2012 policies has not been triggered since there are no allegations by Pontchartrain, and Pontchartrain admits, that no property damage to its pipelines occurred during a relevant policy period. Thus, the district court erred in denying Zurich's motion for summary judgment against Texas Brine on the duty to defend issue.

In this case, we emphasize that because it has been judicially determined that there is no pre-2012 coverage for indemnity under the Zurich policies, there is no duty to defend. The facts presented do not create a situation that would trigger coverage for indemnity under the pre-2012 Zurich policies. Therefore, we find that Zurich's defense obligations toward Texas Brine terminated once it was established that Pontchartrain's claims were not within the scope of the pre-2012 policies. See Maldonado, 146 So.3d at 219 ("When uncontroverted facts preclude the possibility of a duty to indemnify, the duty to defend ceases and the duty to defend is negated.") See also Allstate Ins. Co. v. Roy, 94-1072 (La. App. 1st Cir. 4/7/95), 653 So.2d 1327, 1333, writs denied, 95-1121, 95-1215 (La. 6/16/95), 655 So.2d 339 ("While the duty to defend may exist in circumstances where it is apparent that there is no coverage, it is predicated on some possibility that the allegations, when supported by competent evidence , can be proven." (Emphasis added.) ) In this case, the undisputed facts show that Pontchartrain's claims do not create a situation that would trigger pre-2012 indemnity coverage. Accordingly, we reverse the denial of Zurich's motion for summary judgment that was rendered in favor of Texas Brine, and hereby grant summary judgment in Zurich's favor and dismiss Texas Brine's third-party claims against Zurich in this matter.

CONCLUSION

For the stated reasons, the judgment of the district court is affirmed in part, reversed in part, and rendered as follows. We affirm the district court's grant of summary judgment in favor of Zurich and against Pontchartrain, dismissing all of Pontchartrain's indemnity claims against Zurich. We reverse the district court's denial of Zurich's motion for summary judgment against Texas Brine on the duty to defend issue. Once it was judicially determined that Zurich had no coverage for indemnity under its pre-2012 policies, Zurich's defense obligations ended. Therefore, summary judgment is hereby granted in favor of Zurich against both Pontchartrain and Texas Brine, dismissing all of Pontchartrain's and Texas Brine's claims against Zurich with prejudice. All costs of this appeal are assessed against Texas Brine.

MOTIONS TO DISMISS AND STAY DENIED; AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      Although the last of the pre-2012 Zurich policies expired on March 1, 2012, for consistency with the references made by the parties, we refer to the policies at issue as "pre-2012."

      Texas Brine asserted other direct action claims against certain alleged insurers of an oil and gas defendant, Adams Resources, including a pre-sinkhole policy issued by a Zurich-affiliated company.

      Pontchartrain opposed the motions on a technical procedural timing issue due to Zurich seeking summary judgment for claims asserted in a proposed third supplemental and amended petition that Pontchartrain had not yet been granted leave to file. However, the third amended petition was considered by the district court and eventually filed, leaving no substantive opposition by Pontchartrain.

      The insurers involved in Crosstex II were National Union Fire Insurance Company of Pittsburgh, Pa. and AIG Specialty f/k/a AISLIC.

      In Crosstex I and Crosstex II , the original petitions were filed by Crosstex Energy Services, LP; Crosstex LIG, LLC; and Crosstex Processing Services, LLC (all referred to as "Crosstex"). The plaintiffs' names were later changed, respectively, to EnLink Midstream Operating, LP; EnLink LIG, LLC; and EnLink Processing Services, LLC. See Crosstex I, 240 So.3d at 934, n.1. See also Crosstex II, 240 So.3d at 1026, n.1.

      The "eight-corners rule" refers to looking to the four comers of the plaintiff's petition and the four comers of the insurer's policy to determine whether a duty to defend a civil action against an insured is required. See Maldonado v. Kiewit Louisiana Co. , 2013-0756 (La. App. 1st Cir. 3/24/14), 146 So.3d 210, 218.

      "Zurich" refers to Zurich American Insurance Company, Steadfast Insurance Company, and American Guarantee and Liability Insurance Company collectively.

      "Pontchartrain" refers to Pontchartrain Natural Gas System, K/D/S Promix, L.L.C., and Acadian Gas Pipeline collectively.

      "Texas Brine" refers to "Texas Brine Company, LLC".