4 C's Land Corporation, Jimmy Cantrelle Land Company, L.L.C., James Cantrelle and Leona Cantrelle v. Columbia Gulf Transmission Company and Industrial Helicopters, L.L.C.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2021 CA 0121
2020 CW 1105

4 C' S LAND CORPORATION,
JIMMY CANTRELLE LAND COMPANY, LLC,

Fk JAMES CANTRELLE AND LEONA CANTRELLE

VERSUS

COLUMBIA GULF TRANSMISSION COMPANY
AND INDUSTRIAL HELICOPTERS, LLC

Judgment Rendered: OCT 2 1 2021

Appealed from the
17th Judicial District Court
Parish of Lafourche, State of Louisiana
No. 123238

The Honorable Christopher J. Boudreaux, Judge Presiding

P. Albert Bienvenu Counsel for Plaintiffs/Appellants,
Metairie, Louisiana 4 C' s Land Corporation, Jimmy
Cantrelle Land Company, L.L.C.,
James Cantrelle, and Leona Cantrelle

Marshall A. Hevron Counsel for Defendant/ Appellee,
Roland M. Vandenweghe Columbia Gulf Transmission, LLC
Taylor E. Brett
New Orleans, Louisiana
and

Christopher H. Riviere
Thibodaux, Louisiana

BEFORE: McDONALD, HOLDRIDGE, AND WOLFE, JJ.

WOLFE, J.

This is an appeal, and related application for supervisory writ, of a partial

summary judgment rendered in favor of the defendant holder of pipeline servitudes,

which declared that the plaintiffs will not be able to recover for any damages to trees

and vegetation within and extending into the area of the servitudes. We dismiss the

appeal and deny the writ application.

FACTS

The plaintiffs to this suit are 4 C' s Land Corporation and Jimmy Cantrelle

Land Company, L.L.C., which own non-contiguous tracts of property in Lafourche

Parish, as well as James and Leona Cantrelle, who are the officers, directors, and

members of the two companies and enjoy use of the properties. The properties are

burdened with contractual pipeline servitudes now held by Columbia Gulf

Transmission Company, LLC (" Columbia"). The plaintiffs filed this suit against

Columbia and others, seeking damages and other relief arising from the July 24,

2012 aerial application of chemical herbicide to the properties, both inside and

outside the servitude boundaries, allegedly at Columbia' s direction.' The plaintiffs

averred that the servitude agreements did not authorize Columbia to spray or

otherwise apply chemicals to the properties; therefore, Columbia' s actions

constituted a trespass and breach of the servitude agreements. The damages they

seek include compensation for injuring and killing trees and vegetation both inside

and outside the servitude boundaries.

Columbia moved for partial summary judgment, seeking dismissal of the

plaintiffs' claims for damages to trees and vegetation inside the servitude

The plaintiffs also named Industrial Helicopters, L.L.C., as a defendant, contending it
applied the herbicide and is liable in solido with Columbia. The claims against Industrial
Helicopters are not at issue in this appeal. Nor are the plaintiffs' additional claims against both
Columbia and Industrial Helicopters for injunctive relief at issue. Claims by James and Leona
Cantrelle for physical injuries resulting from exposure to the herbicide have been dismissed.

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boundaries. Columbia contended that as the holder of the servitudes it has the

contractual right to use the servitudes for their intended purpose. Columbia

contended this included the right to maintain the servitude areas for use, which

necessarily included the right to clear trees and vegetation within the servitude

boundaries. Columbia argued that the servitude agreements' silence as to how it

could maintain the servitudes should not be construed to prohibit the use of

reasonable modern methods, including the application of herbicides. Columbia

further argued that its supporting evidence established that it acted reasonably in

deciding to apply the herbicide and in implementing its decision. Thus, Columbia

argued the trial court should grant summary judgment in its favor, ruling that the

plaintiffs cannot recover for any damages to trees and vegetation within the servitude

boundaries.

In opposition to the motion, the plaintiffs argued that the servitude agreements

require compensation to the landowners for the damages that result from the

servitude holder' s use, repair, or maintenance of the pipeline. The plaintiffs

contended that the rights granted by the servitudes cannot be construed to grant

Columbia the unfettered use of the areas and to authorize the aerial spray of

poisonous herbicide, which the plaintiffs maintain was unreasonable, unnecessary,

and applied without their consent.

After a hearing, the trial court agreed with Columbia that its right under the

servitude agreements included the right to clear tree growth. Further, the trial court

found that the servitude agreements could not be interpreted to afford the plaintiffs

damages for trees killed within or extending into the servitude boundaries. The trial

court signed a judgment that granted Columbia' s motion for partial summary

judgment for the reasons set forth in Columbia' s briefs, discussed by Columbia' s

counsel during oral argument, and stated by the court in its oral reasons. The

judgment was further designated as final for purposes of an immediate appeal.

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The plaintiffs filed both an application for supervisory writ and an appeal,

seeking review of the judgment. The writ application was referred to this panel for

resolution. See 4C' s Land Corporation v. Columbia Gulf Transmission Co.,

2020- 1105 ( La. App. 1st Cir. 12/ 21/ 20) ( unpublished writ action).

APPELLATE JURISDICTION

Jurisdiction is the legal power and authority of a court to hear and determine

an action or proceeding involving the legal relations of the parties, and to grant the

relief to which they are entitled. La. Code Civ. P. art. 1. Appellate courts have a

duty to examine their subject matter jurisdiction sua sponte, even if the litigants do

not raise the issue. Advanced Leveling & Concrete Solutions v. Lathan Co., Inc.,

2017- 1250 ( La. App. 1st Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046 ( en Banc).

This court' s appellate jurisdiction extends only to final judgments, which

determine the merits in whole or in part, and to interlocutory judgments made

expressly appealable by law. See La. Code Civ. P. arts. 1841 and 2083; Hoffmann

v. Scurria, 2019- 1047 ( La. App. 1st Cir. 2/ 21/ 20), 299 So. 3d 723, 727. A judgment

that only partially determines the merits of an action will constitute a partial final

judgment that is immediately appealable only if authorized by La. Code Civ. P. art.

1915. Matter of Succ. of Pellette, 2018- 0728 ( La. App. 1 st Cir. 4/ 16/ 19), 2019 WL

16147185 * 5 ( unpublished). Thus, a partial summary judgment dispositive of a

particular issue or theory of recovery may be immediately appealed during ongoing

litigation only if it has been properly designated as final by the trial court pursuant

to Article 1915B. See La. Code Civ. P. arts. 966E, 1915A( 3) and B; Stanley v.

Potts, 2020- 1315 ( La. App. 1st Cir. 6/ 4/ 21), 2021 WL 2283916, * 2 ( unpublished).

Although the trial court herein designated the partial summary judgment sub judice

as final, that designation alone is not determinative of this court' s jurisdiction.

Rather, jurisdiction hinges on whether the designation was proper. See Carr v.

Sanderson Farms, Inc., 2017- 1499 ( La. App. 1 st Cir. 4/ 6/ 18), 2018 WL 1663148,

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2 ( unpublished); Templet v.
State ex rel. Department of Public Safety and

Corrections, 2005- 1903 ( La. App. 1st Cir. 11/ 3/ 06), 951 So. 2d 182, 185.

When the trial court provides explicit reasons for designating a judgment as

final, the appellate court reviews the propriety of the designation under the abuse of
discretion standard. R.J. Messinger, Inc. v. Rosenblum, 2004- 1664 ( La. 3/ 2/ 05),

894 So. 2d 1113, 1122. Historically, our courts have had a policy against multiple

appeals and piecemeal litigation. Article 1915 attempts to strike a balance between

the undesirability of piecemeal appeals and the need for the availability of review to

best serve the needs of the parties. Messinger, 894 So. 2d at 1122. In conducting

our review of the trial court' s designation, we consider the " overriding inquiry" of

whether there is no just reason for delay," as well as the other nonexclusive criteria

trial courts should use in making the determination of whether certification is

appropriate, including the relationship between the adjudicated and unadjudicated

claims; the possibility that the need for review might or might not be mooted by

future developments in the trial court; and the possibility that the reviewing court

might be obligated to consider the same issue a second time; as well as delay,

economic and solvency considerations, shortening the time of trial, frivolity of

competing claims, expense, and the like. Messinger, 894 So. 2d at 1122- 23.

Here, the trial court explained that it found no just reason for delay and

designated the partial summary judgment as final because:

The failure to resolve the issues involved would result in
unnecessary delay during trial due to the likelihood of extensive proffer
of testimony and exhibits, unnecessary expense to litigants in
presenting and defending the dismissed claims during said proffer, and
inconvenience to the jury. Should proffer of evidence regarding the
dismissed claims be improper, the failure to review these rulings
immediately could result in a new trial, with further expense to the
litigants and further inconvenience to citizens called as potential jurors.

After considering the record in light of the relevant legal precepts, we find the

trial court abused its discretion in designating the partial summary judgment as a

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final judgment under Article 1915B. The plaintiffs' claims present an issue of

contractual interpretation of the servitude agreements. The potential recovery of any

damages, whether for the destruction of trees and vegetation inside or outside the

servitude boundaries, is therefore interrelated and dependent on the question of what,

if any, damages are allowed under the servitude agreements. An immediate appeal

of the partial summary judgment sub judice would only serve to encourage multiple

appeals and piecemeal litigation, possibly requiring this court to consider the same

issues in multiple appeals. Moreover, the plaintiffs can seek appellate review of the

issues presented herein in connection with a final judgment in this suit. We are not

persuaded that proffering the evidence proving the damages claimed for the trees

and vegetation within the servitude boundaries will be unduly burdensome when

weighed against the judicial inefficiency caused by considering this matter

piecemeal.

In addition to being improperly designated as final, we note that the judgment

only states that the partial summary judgment is granted and, as a result, the plaintiffs

will not be able to recover for any damages done to trees and vegetation within the

servitude area. The judgment does not contain decretal language dismissing the

plaintiffs' claims in that regard. Although designated as final, the judgment must

still comply with the requirement that it contain decretal language. Berthelot v.

Indovina, 2019- 0821 ( La. App. 1st Cir. 2/ 21/ 20), 311 So. 3d 1139, 1141, writ

denied, 2020- 00921 ( La. 11/ 24/ 20), 305 So. 3d 106. While this latter defect is

curable, such is unnecessary here where we have determined that the designation

was improper. See La. Code Civ. P. arts. 1951 and 2088A( 12).

APPLICATION FOR SUPERVISORY WRIT

In addition to seeking review of the judgment by appeal, the plaintiffs filed an

application for supervisory writ, which was referred to this panel for consideration.

Appellate courts have plenary power to exercise supervisory jurisdiction over lower

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courts and may do so at any time, at their discretion. See La. Const. art. V, §§ l0A

and 16. In Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia,

Inc., 396 So.2d 878 ( La. 1981) ( per curiam), the Louisiana Supreme Court directed

appellate courts to consider an application for supervisory writ under their

supervisory jurisdiction, even though relief may be ultimately available to the

applicant on appeal, when the trial court judgment was arguably incorrect, a reversal

would terminate the litigation (in whole or in part), and there was no dispute of fact

to be resolved. See also Malus v. Adair Asset Management, LLC, 2016- 0610 ( La.

App. 1st Cir. 12/ 22/ 16), 209 So. 3d 1055, 1062. For the same reasons that we

determined the judgment was improperly certified as final under Article 1915B, we

find that the Herlitz criteria are not satisfied. Thus, we decline to exercise our

supervisory jurisdiction to consider the partial summary judgment.

CONCLUSION

For the foregoing reasons, this appeal is dismissed for lack of appellate

jurisdiction and the matter is remanded to the trial court for further proceedings. The

application for supervisory writ is likewise denied. We express no opinion on the

merits of the claims presented. All costs of this appeal are assessed to the appellants,

4 C' s Land Corporation, Jimmy Cantrelle Land Company, L.L.C., James Cantrelle,

and Leona Cantrelle.

APPEAL DISMISSED; WRIT DENIED.

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