Pontchartrain Natural Gas System, k/d/s Promix, L.L.C., and Acadian Gas Pipeline System v. Texas Brine Company, LLC

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 0986

PONTCHARTRAIN NATURAL GAS SYSTEM, K/DIS PROMIX, L.L.C.,
AND ACADIAN GAS PIPELINE SYSTEM

VERSUS

TEXAS BRINE COMPANY, LLC, ET AL.

JUDGMENT RENDERED: DEC 12 2024

Appealed from the Twenty -Third Judicial District Court
Parish of Assumption • State of Louisiana
Docket Number 34, 265 • Division " Ad Hoc"

The Honorable Thomas J. Kliebert, Jr., Presiding Ad Hoc Judge

Leopold Z. Sher COUNSEL FOR APPELLANT Roy C. Cheatwood COUNSEL FOR APPELLEE
James M. Garner Texas Brine Company, LLC Kent A. Lambert Legacy Vulcan, LLC
Jeffrey D. Kessler Adam B. Zuckerman
Martha Y. Curtis Leopoldo J. Yanez
Neal J. Kling Lauren Brink Adams
New Orleans, Louisiana Colleen C. Jarrott
and
Matthew C. Juneau
Robert R. Percy III New Orleans, Louisiana
Gonzales, Louisiana and

and
Antonio M. " Tony" Clayton
Travis J. Turner Port Allen, Louisiana
Gonzales, Louisiana
and

Ulysses Gene Thibodeaux
Lake Charles, Louisiana

BEFORE: WELCH, PENZATO, AND GREENE, JJ.

WELCH, J.

In this appeal, Texas Brine Company, LLC (" Texas Brine") seeks review of

the trial court' s judgment in the Phase 2 damages proceeding, as well as all

interlocutory judgments and orders pertaining thereto.' For the following reasons,

we reverse one interlocutory judgment, vacate a portion of the December 1, 2022

judgment, and we affirm all other judgments at issue in this appeal.

BACKGROUND

This dispute is one of many arising out of a sinkhole near Bayou Come in
Assumption Parish, Louisiana that developed on or about August 3, 2012,

following the collapse of a salt mine cavern. This particular suit was instituted by

Pontchartrain Natural Gas System, K/D/S Promix, L.L.C., and Acadian Gas

Pipeline ( collectively " Pontchartrain"), owners and operators of natural gas

pipelines and storage facilities in the vicinity of the property affected by the
sinkhole.
Pontchartrain, like other affected pipeline companies,2 sought recovery
for damage to its inoperable pipelines due to the alleged negligence of Texas

Brine' s operation of the Oxy Geismar No. 3 Well/ Cavern (" OG3" ), which

collapsed and created the sinkhole.

Texas Brine responded to this lawsuit by filing incidental demands asserting
tort and contract claims against various parties, including Legacy Vulcan, LLC

f/k/a Legacy Vulcan Corp. and/or Vulcan Materials Company (" Legacy Vulcan").
Texas Brine sought recovery not only for its own damages in the form of
I
Following submission of these judgments for this panel' s consideration, the parties, sua sponte,
supplemented the record with an amended judgment dated October 29, 2024, which in all
material respects is identical to the judgments on appeal. Because this panel did not request the
supplementation, and finds no material differences between the two, the supplementation will not
be considered.

2 The other pipeline companies that also filed suit against Texas Brine are Florida Gas
Transmission Company, LLC (" Florida Gas") and Crosstex Energy Services, LP, Crosstex LIG,
LLC and Crosstex Processing Services, LLC (" Crosstex"). Although the claims asserted by
these three separate plaintiffs are similar, the parties resisted consolidation of these three matters,
except for purposes of trial. Like in Phase 1, individual appeals were filed in the three separate
pipeline" cases following the joint Phase 2 damages trial.

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reimbursement expenses for environmental response costs that it paid after the

sinkhole appeared, litigation expenses, and lost profits, but also for claims of

indemnity and/ or contribution for the damages allegedly sustained
by

Pontchartrain.

As was thoroughly discussed in Pontchartrain Natural Gas System v.

Texas Brine Company, LLC, 2018- 1249 ( La. App. 1st Cir. 12/ 30/ 20), 317 So. 3d

715, 725, writ denied, 2021- 00382 & 2021- 00386 ( La. 6/ 8/ 21), 317 So. 3d 323, a

Phase 1 liability trial was held in September of 2017, which determined the cause

of the sinkhole and the fault of the parties involved. Following trial, Texas Brine,

Legacy Vulcan, and a third party, Occidental Chemical Corporation (" Oxy"), all of

whom were found to be at fault for the creation of the sinkhole, appealed. Id. at

739.
With numerous assignments to consider, including whether Legacy Vulcan

could be held liable for damage occasioned years after it had sold its rights and

interest in the OG3 and brine business, this court made several important findings,

which necessarily would affect subsequent phases in this litigation. Id. at 739- 740.

Such findings included a delineation of the parties' duties and obligations as well

as the breaches thereof, which ultimately supported the allocation of fault between
the parties. Id. at 750- 59. Notably, Legacy Vulcan was held 15% liable and Texas

Brine 45% liable for causing the sinkhole. 3 Id. at 763.

Thereafter, the next phase of this litigation, Phase 2, began. Phase 2

contemplated a joint trial to address all incidental demands and damage/ quantum

issues remaining between or among all or any of Texas Brine, Legacy Vulcan, and
any other parties in this case, excluding all issues that were part of the Phase 1

liability trial and also excluding the quantum of any claim or award for attorneys'
fees or legal/ litigation costs. A case management order was issued and revised

3 United Brine Services (" UBS"), a subsidiary of Texas Brine, was held 10% liable for the
sinkhole. Id. at 728 and 763.

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several times outlining the parameters of the Phase 2 trial. Subsequently, the

parties began culling and refining the claims to be addressed in Phase 2. Through

a series of pretrial motions, Legacy Vulcan challenged the inclusion of particular

damages claims for which Texas Brine could be reimbursed, including Texas

Brine' s claims for closing costs, capitalized interest, double recovery, and certain
lost opportunity damages. There were also motions filed challenging the amount

of reimbursement Legacy Vulcan owed Texas Brine for damages paid to plaintiffs,

including Texas Brine' s intentional tort claims, and claims made under the

Amended Operating Agreement. Finally, Legacy Vulcan challenged the

availability of additional contractual remedies to Texas Brine under the

Assignment of Salt Lease.

Following several hearings, the trial court ruled in favor of Legacy Vulcan
on each of these motions.
The trial court certified the following judgments as final
for immediate appeal: the dismissal of Texas Brine' s claim to double recover

certain damages, as well as Texas Brine' s claims under the Assignment of Salt
Lease, and Amended Operating Agreement. Texas Brine appealed these three

judgments, which appeals in turn were all dismissed by this court for failure to
meet the requirements of a final appealable judgment under La. C. C.P. art. 1915( B)

and R.J. Messinger, Inc. v. Rosenblum, 2004- 1664 ( La. 3/ 2/ 05), 894 So.2d 1113,

1122.
See Pontchartrain Natural Gas System v. Texas Brine Company, LLC,
2022- 0738 ( La. App. 1st Cir. 12/ 29/ 22), 360 So. 3d 874, 879; Pontchartrain

Natural Gas System v. Texas Brine Company, LLC, 2022- 0807 ( La. App. 1st
Cir. 5/ 19/ 23), 368 So. 3d 670, 670- 71;
Pontchartrain Natural Gas System v.

Texas Brine Company, LLC, 2022- 1001 ( La. App. 1st Cir. 3/ 1/ 23), 362 So. 3d

952, 956- 57.4

4 Texas Brine also unsuccessfully sought review of three other judgments not certified as final by
the trial court, by filing supervisory writs with this court. See Pontchartrain Natural Gas
System v. Texas Brine Company, LLC, 2022- 0904 ( La. App. 1st Cir. 11/ 7/ 22), 2022 WL
4

Meanwhile, Texas Brine and Legacy Vulcan continued on towards the Phase
2 trial, which began on August 15, 2022, and was held for the purpose of

adjudicating damages representing past unreimbursed response costs, future

response costs, and lost profits related to Texas Brine' s inability to operate the Oxy
Taft 11 and 12 wells. On the fourth day of trial, the parties reached a stipulation,

which was read into the record. The parties agreed that Texas Brine' s Phase 2 total

damages amounted to $ 79, 310,365. 40, of which Legacy Vulcan owed 15%

reimbursement per the comparative fault finding of the Phase 1 litigation.

On December 1, 2022, the trial court executed the Phase 2 judgment, setting
Texas Brine' s damages in the amount of $79,310,365.40, of which Legacy Vulcan
owed 15% reimbursement, or $ 11, 896, 554. 80, to Texas Brine. The judgment

further ordered Legacy Vulcan to pay prejudgment interest to Texas Brine from

the date of judicial demand through October 1, 2022. It is from this judgment that

Texas Brine appeals,
while also seeking review of a number of interlocutory
rulings.

ASSIGNMENTS OF ERROR

1. The trial
legally erred by failing to increase Legacy
court
Vulcan' s
responsibility for damages based on:

a.
The trial court' s failure to apply the parties' contractual agreement that
losses would be shared on a 50/ 50 basis.

b.
The trial court' s failure to apply the mandatory provisions of La. C. C. art.
2323( 0),
despite the court' s finding that Legacy Vulcan' s intentional
misconduct played a role in causing the sinkhole.

2.
The trial court legally erred by denying Texas Brine the right to seek recovery
from Legacy Vulcan of all sinkhole response costs based on the following:

16753562 ( unpublished writ action);
Pontchartrain Natural Gas System v. Texas Brine
Company, LLC, 2022- 0923 ( La. App. 1st Cir. 11/ 7/ 22), 2022 WL 16756967 ( unpublished writ
action);
and, Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 2022- 0961
La. App. 1st Cir. 1/ 20/ 23), 361 So. 3d 491, 497 n. 1, writ denied, 2023- 00255 ( La. 6/ 7/ 23), 361
So. 3d 983.

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a.
The trial court' s failure to apply Louisiana' s collateral source rule and
wrongfully allowing Legacy Vulcan to reduce its liability for causing
damages incurred in response to the sinkhole.

b.
The trial court' s finding that Texas Brine contractually waived any
recovery from Legacy Vulcan of monies reimbursed by insurance
because the trial court wrongfully interpreted the parties' contracts and
ignored previously -recognized material fact issues.

c. The trial court barred, Texas Brine
as untimely, from presenting
testimony or evidence supporting Texas Brine' s claim for lost business
opportunities,
even though Texas Brine timely complied with all

deadlines in the case management order.

d. The trial court ignored genuine issues of material fact and dismissed
Texas Brine' s claim for the carrying costs of capital.

e.
The trial court failed to require Legacy Vulcan to pay sinkhole response
costs incurred by Texas Brine to buy out Bayou Come homeowners, at
the direction of the Governor.

3. The trial court legally erred by ignoring this court' s imposition of fault on
Legacy Vulcan in the liability ruling for breaching its duties as the mineral
lessee and dismissing Texas Brine' s contractual right to recover attorneys'
fees.

APPELLATE JURISDICTION

Generally, when an unrestricted appeal is taken from a final judgment

determinative of the merits, the appellant is entitled to seek review of all adverse

and prejudicial interlocutory judgments, in addition to the review of the final

judgment.
Carrollton Presbyterian Church v. Presbytery of South Louisiana
of Presbyterian Church ( USA), 2011- 0205 ( La. App. 1st Cir. 9/ 14/ 11), 77 So. 3d

975, 978- 79, writ denied, 2011- 2590 ( La. 2/ 17/ 12), 82 So. 3d 285, cert. denied sub

nom, Presbytery of South Louisiana v. Carrollton Presbyterian Church of

New Orleans, 568 U.S. 818, 133 S. Ct. 150, 184 L.Ed.2d 32 ( 2012). In the case of

a restricted appeal,
an appellant may also appeal an interlocutory judgment

involving the same or related issues. Id. at 979. The trial court' s rulings on

motions for partial summary judgment and motions to strike are interlocutory

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judgments. La. C. C.P. arts. 1915( A)(3), 1841 &
2083; Louisiana Safety Ass' n of

Timbermen v. Carlton, 2012- 0775 ( La. App. 1st Cir. 12/ 21/ 12), 111 So. 3d 1076,
1081 n.3. The merits of the present appeal concern the quantum of damages owed

following the Phase 1 liability trial. The motions require determinations of

whether certain expenditures should be classified as damages to be apportioned

between the parties, and whether any prior ruling or contractual clause between

these parties would augment the contribution allocation determined in the previous

phase of litigation.
Because the trial court' s interlocutory rulings on these issues

are so clearly interrelated with the quantum judgment, it is appropriate to consider

the merits of all of Texas Brine' s assignments of error regarding these multiple
judgments. See Stevens v. St. Tammany Parish Government, 2016- 0534 ( La.

App. 1st Cir. 1/ 18/ 17), 212 So. 3d 568, 578.

As there are distinct sets of claims being appealed, we will address each

accordingly, beginning with claims reducing the recoverable amount of damages

that were dismissed by the trial court and therefore not included in the final

quantum damage calculation. Next,
we will discuss the availability of any
additional contractual remedies to Texas Brine. Finally, we will determine the

viability of claims that would reapportion the reimbursement owed by Legacy
Vulcan to Texas Brine.

SUMMARY JUDGMENTS

Appellate courts review the grant or denial of a motion for summary
judgment de novo using the same criteria applied by the trial courts to determine
whether
summary judgment is appropriate. Georgia- Pacific Consumer

Operations, LLC v. City of Baton Rouge, 2017- 1553, 2017- 1554 ( La. App. 1st
Cir. 7/ 18/ 18), 255 So.3d 16, 22, writ denied, 2018- 1397 ( La. 12/ 3/ 18), 257 So. 3d

5 Although the Legislature recently amended La. C.C.P. art. 966, those amendments are not
applicable to the instant appeal. See 2023 La. Acts No. 317, § 1 ( eff. Aug. 1, 2023), and 2023
La. Acts No. 368, § 1 ( eff. Aug. 1, 2023).

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194.
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 of material fact and that the mover is entitled to judgment
as a matter of law. La. C. C. P. art. 966( A)( 3); Campbell v. Dolgencorp, LLC,

2019- 0036 ( La. App. 1st Cir. 1/ 9/ 20), 294 So. 3d 522, 526.

The burden of proof on a motion for summary judgment rests with the
mover. La. C. C.P. art. 966( D)( 1); Lucas v. Maison Insurance Co., 2021- 1401

La. App. 1st Cir. 12/ 22/ 22), 358 So. 3d 76, 84. Nevertheless, if the mover will not

bear the burden of proof at trial on the issue that is before the court on the motion

for summary judgment, the mover' s burden on the motion does not require him to

negate all essential elements of the adverse party' s claim, action, or defense.

Instead, after meeting his initial burden of showing that there are no genuine issues

of material fact, the mover may point out to the court that there is an absence of

factual support for one or more elements essential to the adverse party' s claim,
action, or defense. Thereafter, summary judgment shall be granted unless the

adverse party can produce factual evidence 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. See La. C.C. P. art. 966( D)( 1); Lucas, 358 So. 3d at 84.

DOUBLE RECOVERY/COLLATERAL SOURCE

On November 16, 2021, Legacy Vulcan filed a motion for partial summary
judgment seeking to dismiss Texas Brine' s claims for double recovery of insured
losses and liabilities. Within this motion, Legacy Vulcan sought to dismiss with

prejudice, Texas Brine' s claims for double recovery from Legacy Vulcan under the
collateral source rule for losses and liabilities related to the sinkhole that had

already been paid or reimbursed to Texas Brine by its liability insurers. Legacy
Vulcan asserted that Texas Brine was prohibited from such recovery because the
collateral source rule did not apply to Texas Brine, as it was a tortfeasor and not a

tort victim. Legacy Vulcan further argued that Texas Brine was not entitled to

these damages because contractually, Texas Brine had expressly waived its right to
such recovery, citing Section 7. 4 of the Amended and Restated Facilities Lease

Agreement

In support of its argument, Legacy Vulcan attached as evidence a copy of
the Phase 1 opinion, Pontchartrain Natural Gas System, 317 So. 3d at 763,

wherein Texas Brine, along with Legacy Vulcan, were named as liable parties for

the cause of the sinkhole and apportioned shares of fault. Legacy Vulcan also

entered into evidence several of the contracts between the parties including the
Amended and Restated Facilities Lease Agreement, which provides in pertinent

part:

Section 7. 4 Mutual Waiver of Subrogation Rights. Whenever
a) any loss, cost, damage or expense resulting from fire, explosion or
any other liability, casualty or occurrence is incurred by either of the
parties to this Lease in connection with the Leased Premises, and ( b)
such party is then covered in whole or in part by insurance with
respect to such loss, cost, damage or expense, then the party so
insured hereby releases the other party from any liability it may have
on account of such loss, cost, damage or expense to the extent of any
amount recovered by reason of such insurance and waives any right of
subrogation which might otherwise exist in or accrue to any person on
account thereof, provided that such release of liability and waiver of
the right of subrogation shall not be operative in any case where the
effect thereof is to invalidate such insurance coverage or increase the
cost thereof...

Additionally, the
Amended and Restated Operating and Supply Agreement

contains the following provisions:

Section 12. 4 Insurance. During the term of this Agreement,
Texas [ Brine] shall take out, or cause to be taken out, and shall

maintain liability and other insurance with respect to its operation of
the Leased Premises, insuring against such risks as are customarily
insured against by businesses similarly situated and operating like
properties,
including, but not necessarily limited to the following
insurance:

d) Commercial general liability insurance with limits of
5, 000, 000, combined single limit, including contractual liability
coverage which shall cover the
specifically indemnity of this

E

Agreement, products/ completed operations and XCU ( explosion,

collapse and underground) coverages.

The policy or policies of insurance required under Sections
12. 4( c)and 12. 4( d) hereof shall name [ Legacy] Vulcan as an
additional insured, and the commercial general liability insurance
required under Section 12. 4( d) hereof shall be primary as to any
insurance or self-insurance programs of [Legacy] Vulcan.

Legacy Vulcan also included the deposition testimony of Fred Wolgel, a

corporate attorney providing legal services to various entities within the " Texas"

framework, through Texas United Management, and several discovery responses
attached thereto. These documents were presented to demonstrate that Texas

Brine' s patrimony was not diminished by the acquisition of these insurance

policies because Texas Brine' s affiliate purchased these policies on Texas Brine' s

behalf and requested Texas Brine only pay a portion of the premiums, which Texas

Brine allocated to its customers.

Texas Brine opposed this motion, arguing that its insurance policies were a

collateral source of money from which Legacy Vulcan had no legal right to benefit

by way of reducing its monetary judgment to Texas Brine. Texas Brine opined

that it is a tort victim even though it may be partially liable for the sinkhole, and no

Louisiana case holds that a partially liable defendant — who suffered its own,

distinct damages — was prohibited from invoking the collateral source rule against

another partially liable defendant, for its own damages. Furthermore, Texas Brine

argued that none of the contracts cited by Legacy Vulcan apply to prohibit Texas
Brine' s double recovery because the Amended Facilities Lease does not

encompass the OG3,
and Legacy Vulcan was not a party to the Amended

Operating Agreement at the time of the sinkhole.

A hearing on this motion was held on December 16, 2021. Following party

arguments, the matter was taken under advisement. On January 18, 2022, the trial

court signed a judgment granting Legacy Vulcan' s motion for partial summary

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judgment dismissing Texas Brine' s claims for double recovery of insured losses
and liabilities with prejudice, finding that Texas Brine could not recover from

Legacy Vulcan for losses that had already been paid by Texas Brine' s own
insurers.

On appeal, Texas Brine presents several arguments regarding why it should

be allowed to double recover certain damages already reimbursed to it by its
liability insurers from Legacy Vulcan.' Texas Brine asserts that the trial court

deviated from Louisiana law in failing to apply the collateral source rule to Texas

Brine' s insurance proceeds because Texas Brine was adjudicated to be most

culpable for the sinkhole.
However, Texas Brine argues, a tort victim' s culpability
is not a feature of the collateral source rule, and instead it applies to all tort

victims, even tort victims partially at fault. ( Emphasis in original). Texas Brine

argues that one of the main pillars of the collateral source rule, tort deterrence,

would be hampered if Legacy Vulcan is allowed to benefit from Texas Brine' s

prudence in obtaining insurance. In so doing, Texas Brine emphasizes its status as

a tort victim with independent tort claims against Legacy Vulcan, which entitles it
to application of the collateral source rule. Last, Texas Brine argues that the trial

court erred in ruling that Texas Brine released Legacy Vulcan from tort claims

covered by insurance by applying provisions of certain contracts between the
parties.

6
Briefly, Texas Brine begins by stating that Legacy Vulcan' s motion was granted although it
lacked any evidence of what sinkhole response costs were paid by Texas Brine' s insurers. We
note that the collateral source rule is a rule of evidence and damages. From an evidentiary
perspective, the rule bars the introduction of evidence that a plaintiff has received benefits or
payments from a collateral source independent of the tortfeasor' s procuration or contribution.
Bozeman v. State, 2003- 1016 ( La. 7/ 2104), 879 So. 2d 692, 699.
In this litigation, Legacy
Vulcan included as evidence the insurance policies in effect at the time of the sinkhole, which
the parties concede for this purpose, were the only contributing policies to the liability judgment
against Texas Brine. Legacy Vulcan further attached the affidavit of Fred Wolgel who attested
to certain amounts of liability insurance having been paid to Texas Brine by the named
companies.
We find Legacy Vulcan' s evidence sufficient to demonstrate the amount that Texas
Brine was provided in insurance proceeds for sinkhole response costs such that the trial court and
parties know the amount of damages to be withheld from the total damages award because of
these payments.

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The collateral source rule provides that a tortfeasor may not benefit, and an

injured plaintiff' s tort recovery may not be reduced, because of monies the plaintiff

receives from sources independent of the tortfeasor' s procuration or contribution.

Bozeman v. State, 2003- 1016 ( La. 7/ 2/ 04), 879 So. 2d 692, 698. Under the rule,

payments received from an independent source are not deducted from the award a

tort victim would otherwise receive from the tortfeasor, because the tortfeasor is

not allowed to benefit from outside benefits provided to the tort victim. Id. The

rule reflects the beliefs that the tortfeasor should not profit from the victim' s

prudence in obtaining insurance, or benefitting from other sources, and that

reducing the amount the tortfeasor would have to pay hampers the deterrent effect
of the law. Bellard v. American Central Insurance Co., 2007- 1335 ( La.

4/ 18/ 08), 980 So. 2d 654, 668.

As set forth in Bellard, 980 So.2d at 668, a troubling aspect of the collateral
source rule for Louisiana courts is the " double recovery" or " windfall" that might

arise as a consequence of the victim' s receipt of an outside payment. The guiding

principles of awarding tort damages are to deter wrongful conduct and to make the

victim whole.
This goal is thwarted, and the law is violated, when the victim is

allowed to recover the same element of damages twice. Id. However, the

Louisiana Supreme Court has determined that an objectionable " windfall" does not

occur when the injured party' s patrimony was diminished to the extent that he was

forced to recover against outside sources, and the diminution of his patrimony
constituted additional damages suffered. Cutsinger v. Redfern, 2008- 2607 ( La.

5/ 22/ 09), 12 So. 3d 945, 953, citing Bozeman, 879 So. 2d at 699.

The Louisiana Supreme Court, recognizing this conflict, has provided

guidance on the issue, promulgating two considerations to guide a court' s

determination with respect to the applicability of the collateral source rule: ( 1)

whether applying the rule will further the major policy goal of tort deterrence; and

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2) whether the victim, by having a collateral source available as a source of

recovery, either paid for such benefit or suffered some diminution in his patrimony

because the benefit was available, such that he is not reaping a windfall or double

recovery. Cutsinger, 12 So. 3d at 953.

After careful consideration, we agree with the trial court in finding the

collateral source rule inapplicable in this instance. Based on the Phase 1 liability

trial, the tortious actions by both Texas Brine and Legacy Vulcan caused damage

to Pontchartrain, and resulted in both parties being held liable for same, such that

the parties could be solidary obligors to Pontchartrain. See La. C. C. arts. 1794 &

1804. There was no adjudication that Texas Brine was the victim of a tort,

although it asserted several claims against Legacy Vulcan, including negligent

misrepresentation and fraudulent inducement. Texas Brine may have been the

obligor/tortfeasor who initially rendered performance to plaintiffs, but that does not

make Texas Brine a tort victim, only the possessor of a right of contribution. See

La. C. C. art. 1805. Looking at the underlying policies of the collateral source rule,

as between two tortfeasors attempting to quantify amounts of contribution, the goal

of tort deterrence does not appear to be furthered at all. Thus, this argument in

favor of the collateral source rule is unpersuasive. In so finding, we pretermit

discussion of whether any contractual waiver applies to override collateral source

application.
We affirm the trial court' s January 18, 2022 judgment dismissing with

prejudice Texas Brine' s claims for double recovery of insured losses and liabilities,

finding that Texas Brine cannot recover from Legacy Vulcan for losses that have

been paid by Texas Brine' s liability insurers.

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CLOSING COSTS AND APPRAISAL FEES

On May 19, 2422, Legacy Vulcan filed a motion for partial summary

judgment seeking to dismiss with prejudice Texas Brine' s claims for closing costs

and appraisal costs associated with voluntary settlement acquisitions of Bayou

Coyne properties. This motion sought specifically to dismiss Texas Brine' s claim

for costs associated with vendors, Commerce Title & Abstract Company and Right

of Way Services, Inc., which Texas Brine claimed provided " property

maintenance" services in response to Directive 1 of the Fourth Amendment to

Declaration of Emergency and Directive (" Directive I") issued to Texas Brine by

the Louisiana Department of Natural Resources.' Legacy Vulcan urged that

contrary to Texas Brine' s assertions, Texas Brine' s claims for these response costs

had little to do with Directive 1, which mandated that Texas Brine upgrade

ventilation systems in homes near the sinkhole — not purchase the properties

outright. Because these costs were not required for compliance with Directive 1,

and the result of these buyouts was the release of the property owners' claims

against Texas Brine only, Legacy Vulcan argued these costs should not be

considered response costs for which Legacy Vulcan is now required to reimburse

Texas Brine. Legacy Vulcan further argued that Texas Brine, itself, designated

this particular group of buyouts as " voluntary" settlements. Alternatively, Legacy

Vulcan asserted that because these transactional costs were incurred in connection

with the purchase of property, they should be classified as legal fees, not damages.

In support of its motion, Legacy Vulcan attached in pertinent part, Texas

Brine' s fourth supplemental and amended responses and objections to discovery
and chart of damages. In this discovery, Texas Brine identified as response costs,

payments made to Commerce Title & Abstract Company and Right of Way

Texas Brine' s payments to these two companies were only in relation to their services
regarding the purchase of these properties.

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Services, Inc. in conjunction with Directive 1. Legacy Vulcan also attached

Directive 1, which provides in pertinent part:

It is hereby declared that in response to the emergency subsidence
incident and gas migration events covered herein
by the and

emergency declaration and amended emergency declarations effective
August 3, 2012, August 9, 2012, September 25, 2012, and October 11,
2012 respectively, [ Texas Brine] is hereby ordered to undertake any
and all necessary actions to assess for and abate threats to safety and
the environment, including the abatement of natural gas accumulation
in the aquifer and aquitard.

It is further declared that [ Texas Brine] is specifically directed and
is hereby ordered to undertake the necessary actions to address the
potential danger to human life associated with the gas pressures
mentioned above and at a minimum perform all of the following
within the deadlines set forth below:

1) Immediately obtaining permission of the owner( s),
upon

upgrade ventilation of slab -on -grade homes or slab -on -grade
structures by providing for ventilation improvements on spaces
within the structure that are not adequately ventilated, and
provide for the installation in these spaces permanent LEL
instrumentation connected to an
alert/monitoring system

continuously monitored by a bonded/ qualified independent
contract response team to immediately respond to all alarms for
all homes or structures with slab -on -grade construction located
within the evacuation area established by Assumption
Parish ...In order to comply with this directive and order [ Texas

Brine] may also undertake other actions which are of equal or
greater protective value to the protection of public safety as
approved by this office that may terminate the necessity for
continuous monitoring as described herein.

Legacy Vulcan also attached excerpts from the deposition taken on March

25, 2022, of Bruce Martin, the President of United Brine Services (" UBS"), Texas

Brine' s wholly owned subsidiary. Mr. Martin, appearing as Texas Brine' s

corporate representative in accordance with La. C. C.P. art.
1442 during this

deposition, testified that a company named Bayou Come Holdings, LLC, not

Texas Brine, was the actual purchaser and owner of these particular properties, and

remains the title holder of these properties. When describing the different groups

of residents or residential property owners with whom Texas Brine settled, Mr.

Martin attested as follows:

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I would put it as there was a group that wanted —that requested
voluntary buyouts. I don' t know if they actually had lawsuits or
claims against us, but they requested voluntary buyouts. That was the
first group.

And then there was all of the parties to the LeBlanc class
action, those that wanted to settle and move on. And then there was
the opt -outs...

Legacy Vulcan urges that the first group, labeled as " voluntary" by Mr. Martin, is
the subject of this motion.

Texas Brine opposed the motion arguing that the acquisition of properties

around Bayou Come was anything but voluntary, as Texas Brine was confronted

with threats by Louisiana state government officials that it would either purchase

these properties or face going out of business in Louisiana. Texas Brine explained

that from the instant the sinkhole emerged, it was bombarded with directives,

orders,
and proclamations by the State of Louisiana, which referenced the

obligations that Texas Brine undertook in its permits for operation of the OG3,

including assisting with resident evacuations. Texas Brine asserted that in

combination with closed -door meetings and press releases, it understood that

acquiring these residences was not optional. Texas Brine maintained that, because

the buyouts were not optional and were a result of the sinkhole, they were a

necessary response cost, and Legacy Vulcan should be made to pay its virile share
of same.

Pertinent evidence attached in support of Texas Brine' s opposition was the

affidavit of Bruce Martin, dated June 6, 2022, who attested to the following:
7. In connection with the state -mandated directives, Texas
Brine was ordered to, among other things, ( 1) contain the water inside
the sinkhole, ( 2)
assess the stability of the western edge of the
Napoleonville Salt Dome, ( 3) address subsidence concerns in the area,
4)
investigate the presence of methane and hydrocarbons trapped in
the local groundwater aquifer, ( 5) monitor air quality, and ( 6) make
evacuation payments to residents of the Bayou Come community.
10. On August 3, 2012, when the sinkhole appeared,

Assumption Parish Office of Homeland Security and Emergency
16

Preparedness ordered a mandatory evacuation —effective immediately
of residents ranging " from the home of Randy Rousseau south to all
residents within the Bayou Come Community."

12. The State of Louisiana ( through the Louisiana Department
of Natural Resources) issued multiple directives that compelled Texas
Brine to incur various response costs, including directives to make
assistance payments to residents in the community who were forced to
evacuate.

14. The August 17, 2012 LDNR Compliance Order referenced
the Permit for the well at issue, which specifically recites that if there
is a collapse ( such as the sinkhole) and there is a threat to any
residents " the occupants will be assisted if evacuation is required."

15. Texas Brine ultimately paid evacuation assistance payments
totaling $ 11, 949, 724. 16.

16. Throughout its response to the Sinkhole, Louisiana State

and Assumption Parish local officials consistently pressured Texas
Brine to compensate the residents of the Bayou Come community by
acquiring the properties of residents who wanted to leave as a result of
the Sinkhole.

17. While the residents of the community were given the option
to retain their properties, Texas Brine understood that offering to
acquire these homes was not optional, as state and local officials
required Texas Brine to issue the buyout offers in direct response to
the Sinkhole.

18. In particular, Texas Brine officials, including myself, met
with then -Governor Bobby Jindal to discuss the need for Texas Brine
to buy the residents' properties in response to the Sinkhole.

19. Then,in May 2013, at a press conference in the Bayou
Come community that was held to discuss Texas Brine' s alleged
inaction to actually offer buyout agreements, Governor Jindal told the
Bayou Come community and anyone listening to the press

conference, including Texas Brine, that Texas Brine needed to " make
things right"
with Bayou Come residents by offering settlement
buyouts.

20. Texas Brine understood Governor Jindal' s message, and the
issuance of Executive Order BJ 13- 08 as an instruction for Texas
Brine to offer buyout options to the homeowners in Bayou Come who
wanted to sell their properties. Texas Brine perceived this instruction
as mandatory, non -optional, and non-negotiable.

26. In response to [ Executive Order BJ 13- 08], and after

continual threats that its work permits throughout Louisiana would be
highly scrutinized and potentially suspended, revoked, or terminated,
Texas Brine had no choice but to offer buyout opportunities for the
residents of Bayou Come.

17

27. In exchange for purchasing the properties, Texas Brine also
obtained a release of each accepting homeowner' s sinkhole -related
claims and the termination of evacuation assistance payments.

28. Texas Brine entered into these agreements because both the
Governor and local officials demanded that Texas Brine offer these
settlement buyouts to the residents of Bayou Come.

Attached to the affidavit were certain documents referenced therein,

including the original Declaration of Emergency issued on August 3, 2012, noting
Texas Brine, as the operator of record of the OG3, was required to take immediate

action to thoroughly evaluate the integrity of the OG3 and to undertake all

appropriate action to abate and halt the deterioration of the cavern' s integrity. Also

attached was correspondence dated the same day, from the State to Texas Brine,

alerting it to the issuance of the Emergency Declaration, and that as operator it was

advised to take all appropriate steps to protect against environmental damage and

prevent threats to public safety associated with the subsidence incident. Texas

Brine was also put on notice that additional action may be ordered by the State as

deemed necessary.

The August 17, 2012 LDNR Compliance Order referenced in Mr. Martin' s

affidavit was also attached. Within this order, the State reminded Texas Brine that

in its permit application to operate these three wells Texas Brine agreed that in the

event of the appearance of symptoms of acute subsidence, i.e. sinkhole formation,

it would take a number of steps, including assisting in residential evacuation if a

residential area appeared to be threatened by the collapse. The Order further

recited that on or about August 2 and 3, 2012, a subsidence formation ( sinkhole)

formed in a wooded area located between Bayou Come and Grand Bayou in the

vicinity of the referenced wells, causing State officials to order a mandatory

evacuation effective immediately, " from the home of Randy Rousseau south to all

residents within the Bayou Come Community." ' Texas Brine then announced the

creation of a housing assistance fund for residents living around the Bayou Come

Community in the area under the mandatory evacuation order, on or about August

16, 2012, which would be available the following day. However, because this

assistance was not provided from the time when the evacuation was actually

ordered, Texas Brine was in violation of its permit obligations and Louisiana law. .

Finally, in its effort to demonstrate that these buyouts were mandatory,

Texas Brine also attached as evidence Executive Order No. BJ 2013- 08 ( signed

May 20, 2013), which provided in pertinent part:

WHEREAS, on March 14, 2013, Texas Brine officials met
with State and local officials and pledged to extend settlement offers
over the following several weeks, including buyouts, to residents
forced to evacuate their homes as a result of the threat posed by the
sinkhole at Bayou Come, and further agreed to reimburse local and
state officials for the response costs associated with this incident; and

WHEREAS, as of this date, Texas Brine has missed multiple
deadlines to extend these settlement offers and no such buyouts have
occurred, calling into question the willingness of Texas Brine to fulfill
its pledge to the residents of Bayou Come and others impacted by its
operations,
the company' s financial ability to meet the obligations
created by its salt dome operations in Assumption Parish, and the
adequacy of its insurance coverage for its operations in Assumption
Parish and elsewhere at any of its other permitted sites in the State of
Louisiana; and

NOW THEREFORE, 1, Bobby Jindal, Governor of the State
of Louisiana, by virtue of the authority vested by the Constitution and
the laws of the State of Louisiana, do hereby order and direct as
follows:

SECTION 1: The Commissioner of Conservation shall conduct
a complete review of the pen nits
- issued to Texas Brine in connection
with its operations of salt cavern wells in the vicinity of Section 40,
Township 12 South, Range 13 East, in Assumption Parish, as well as
all permits issued to Texas Brine throughout the State, in order to
determine if Texas Brine' s current financial condition indicates that
such permit( s) should be modified, revoked and reissued, or

terminated.

SECTION 2: All departments, commissions, boards, offices,
entities, agencies, and officers of the State of Louisiana, or any
political subdivision thereof with any regulatory program implicated
by the emergency situation near Bayou Come in Assumption Parish,
shall review to determine whether Texas Brine remains capable of
meeting its regulatory obligations...

U61

SECTION 3: In light of Texas Brine' s inability to meet its
previous commitments, the Commissioner of Conservation shall
conduct a review of the ongoing financial ability of Texas Brine to
meet the financial obligations resulting from its salt dome operations
in Assumption Parish and elsewhere at any of its other permitted sites
in the State of Louisiana, as well as the adequacy of its insurance
coverage for the company' s operations in Assumption Parish and
elsewhere at any of its other permitted sites in the State of Louisiana.

A hearing on this motion took place on June 21, 2022. Following party

arguments, the trial court granted this motion, finding these particular damages

were not sufficiently related to response costs. A judgment reflecting the oral

ruling was signed by the trial court on July 19, 2022, dismissing with prejudice

Texas Brine' s claim against Legacy Vulcan for alleged costs associated with

vendors, Commerce Title & Abstract Company and Right of Way Services, Inc., to

recover closing costs and appraisal costs associated with Texas Brine' s voluntary

acquisition of properties in Bayou Come following the sinkhole.

On appeal, Texas Brine argues that buyouts of properties that are the subject

of environmental litigation are common practice. In its effort to demonstrate the

trial court' s error in granting this motion, Texas Brine recounts the evidence it

presented in opposition to this motion, including the initial mandatory evacuation

of residents when the sinkhole appeared, and that Texas Brine was warned of "dire

consequences"
if it did not comply with its permitting obligations, as well as the

public criticism the State gave Texas Brine in Executive Order BJ 2013- 08. Tying

it all together, Texas Brine cites to Mr. Martin' s affidavit, which explained that

throughout these exchanges, the State was demanding that Texas Brine acquire

these properties and threatening to revoke Texas Brine' s permits to operate

anywhere in Louisiana if the buyouts did not occur.

Looking at the motion and evidence presented by both parties we agree with

the trial court' s ruling. Legacy Vulcan filed a motion for partial summary

judgment to dismiss Texas Brine' s claims for closing costs and appraisal costs paid

20

to Commerce Title & Abstract Company and Right of Way Services, Inc. for

acquisition of homes in the Bayou Come community, in response to Directive 1.

Legacy Vulcan demonstrated that these buyouts were not responsive to Directive

1, as that directive only required natural gas abatement in and around those

residences.
Furthermore, Legacy Vulcan presented deposition testimony of Mr.

Martin, who had described these buyouts as voluntary via requests of residents

despite any actual claim status. At that point, the burden shifted to Texas Brine to

produce factual evidence sufficient to establish the existence of a genuine issue of

material fact or that Legacy Vulcan was not entitled to judgment as a matter of

law. See La. C. C. P. art. 966( D)( 1).

Texas Brine attempted to satisfy its burden by changing the impetus of the

buyouts from Directive 1, which was the reason listed in its discovery responses, to
several different State documents, namely Executive Order BJ 2013- 08 to prove

the necessity of the buyouts. However, these orders and proclamations only

recited that Texas Brine had obligated itself during the permitting process, to assist

with residential evacuations and that it had previously pledged to State officials

that it would extend settlement offers to affected residents. The documents further

demonstrated that the State voiced concerns, given Texas Brine' s failure to fulfill

its own pledges and permitting obligations following the sinkhole, that Texas Brine
may be financially unable to do so, leaving the State to question the economic

fitness of Texas Brine in comparison to the scale of its operations in Louisiana.

Texas Brine' s key evidence in support of its argument was Mr. Martin' s affidavit,

which stated that State officials told Texas Brine to acquire these properties, and

although there is no document directly mandating the acquisition, Texas Brine

understood that the acquisitions had to be made in order to remain in business in

Louisiana.

21

In regards to the circumstances surrounding the buyouts, Mr. Martin' s prior

testimony taken during his March 2022 corporate deposition, described these

buyouts as that of a group " that requested voluntary buyouts," without necessarily

having any lawsuit or claim against Texas Brine. Later, in his June 2022 affidavit,

filed in support of this opposition, Mr. Martin attested that these buyouts occurred

due to government pressure. With regard to the information contained in Mr.

Martin' s affidavit concerning the cause of these buyouts, we find the affidavit

testimony to be contrary to Mr. Martin' s previous La. C. C.P. art. 1442 deposition

testimony. A subsequent affidavit in contradiction to prior deposition testimony is

not sufficient to create an issue of fact precluding summary judgment without

some explanation or support for the contrary statement. Christophe v.

Washington, 2017- 0512 ( La. App. 1st Cir. 2/ 14/ 19), 272 So. 3d 106, Ill, citing

McCastle-Getwood v. Professional Cleaning Control, 2014- 0993 ( La. App. 1st

Cir. 1/ 29/ 15), 170 So. 3d 218, 222; see also Douglas v. Hillhaven Rest Home,

Inc., 97- 0596 ( La. App. 1st Cir. 4/ 8/ 98), 709 So. 2d 1079, 1083, writ denied, 98-

1793 ( La. 10/ 30/ 98), 727 So. 2d 1161; LeBlanc v. Dynamic Offshore

Contractors, Inc., 626 So. 2d 16, 21 ( La. App. 1st Cir. 1993). Because Texas

Brine does not offer any explanation for Mr. Martin' s inconsistent testimony, we

find that the affidavit is not sufficient evidence to create a genuine issue of fact

precluding summary judgment. We further find that the remaining evidence

presented did not sufficiently demonstrate that the buyouts were mandated by the

State rather than initiated by Texas Brine. Therefore, Legacy Vulcan is entitled to

summary judgment as a matter of law.

For these reasons, we affirm the trial court' s July 19, 2022 judgment

granting Legacy Vulcan' s motion for partial summary judgment dismissing with

prejudice Texas Brine' s claims for closing and appraisal costs associated with

22

vendors, Commerce Title & Abstract Company and Right of Way Services, Inc., in

connection with Texas Brine' s acquisition of the Bayou Corne properties.

CAPITALIZED INTEREST

On May 23, 2022,
Legacy Vulcan moved for partial summary judgment

seeking to dismiss Texas Brine' s capitalized interest claim with prejudice. In this

motion, Legacy Vulcan argued that Texas Brine' s capitalized interest claim should

be dismissed because it impermissibly duplicates statutory judicial interest as

compensation for the lost use of funds Texas Brine claims to have spent

responding to the sinkhole. Legacy Vulcan further argued that because the trial

court previously ruled that such a claim is impermissible under Louisiana law,

Legacy Vulcan was entitled to judgment as a matter of law.

In its accompanying memorandum, Legacy Vulcan urged that with this

claim, Texas Brine sought to recover from Legacy Vulcan, all damages attributable

to Texas Brine' s inability to invest or earn income upon funds which it spent out-

of-pocket to respond to the emergence of the sinkhole. Legacy Vulcan further

asserted that this claim was nearly identical to a Pontchartrain claim previously
litigated against Texas Brine. Legacy Vulcan further pointed out that Texas Brine

vigorously and successfully opposed Pontchartrain' s right to recover capitalized

interest damages as Texas Brine argued that Louisiana law did not recognize such

a claim when the capital was taken from the company rather than borrowed.

Legacy Vulcan noted that Texas Brine previously argued that claiming as damages
the lost use of one' s own capital, because it was used for a repair, was not possible

in Louisiana because such damages were the same as prejudgment interest, which

was an available remedy in this litigation. Legacy Vulcan argued that like

Pontchartrain' s claim, none of Texas Brine' s capitalized interest claims resulted

from the borrowing of funds for the specific use of funding response costs. Rather,

Texas Brine paid expenses with its own capital, which Texas Brine had previously
23

argued, did not qualify as appropriate damages under capitalized interest. Legacy

Vulcan asserted this legal issue was already determined between Pontchartrain and

Texas Brine, with the trial court finding in favor of Texas Brine. For the same

reasons, summary judgment should now be granted in favor of Legacy Vulcan,

dismissing Texas Brine' s capitalized interest claims.

In support of its motion Legacy Vulcan attached, in pertinent part, Texas

Brine' s post -trial memorandum ( in opposition to Pontchartrain' s capitalized

interest claim) wherein Texas Brine described Pontchartrain' s capitalized interest

claim as one for the alleged opportunity costs incurred in not making an investment

with the funds used for repairs, arguing that courts have equated such claims for

capitalized interest or lost opportunity costs to a claim for prejudgment interest.

Texas Brine further asserted that in this litigation, prejudgment interest is

recoverable as a matter of law so the court should not permit Pontchartrain to

recover once for capitalized interest and then recover prejudgment interest because

the two claims are essentially for the same element of damages and would

constitute double recovery. Further, Texas Brine argued that had Pontchartrain

actually incurred debt and paid interest on funds borrowed to complete its repairs,

that would be recoverable, citi_g, Firmin, Inc. v. Denham Springs Floor

Covering, Inc., 595 So. 2d 1164, 1171 ( La. App. 1st Cir. 1991).

Legacy Vulcan also attached the trial court' s May 2019 Phase 2 judgment

between Pontchartrain and Texas Brine, as well as its reasons for judgment. In its

reasons,
the court concluded that Louisiana law does not permit recovery of

capitalized interest in tort cases as a matter of law, finding that if Pontchartrain had

actually incurred and paid interest on funds borrowed for the express purpose of

funding the repairs, those funds would be recoverable. However, because

Pontchartrain did not borrow any funds for the specific purpose of completing its
repairs such relief was not afforded to it. The trial court continued that Louisiana

24

law permits the recovery of prejudgment legal interest in tort, which is very

similarly defined by the Louisiana Supreme Court to Pontchartrain' s description of

its claim for recovery of capitalized interest. Thus, the award of prejudgment

interest would make Pontchartrain whole for the loss of use of funds incurred in

the post -sinkhole repairs.

In further support of its motion, Legacy Vulcan attached as evidence,

various amended pleadings by Texas Brine wherein it described its capitalized

interest claim as its inability to invest or earn income upon the funds which it spent

out- of-pocket to respond to the emergence of the sinkhole.

In opposition, Texas Brine offered several arguments to distinguish itself

and its claims from Pontchartrain, including emphasizing the fact that

Pontchartrain' s " capitalized interest" claim was dismissed only after a trial on the

merits, not on summary judgment, during which only facts and evidence regarding
Pontchartrain' s claim were taken into consideration. Texas Brine asserted that it

should be afforded its day in court to present its own evidence and facts regarding
its own claim. Texas Brine attached evidence to prove its historic business

practices and operating philosophies regarding reinvestment back into itself to

grow as a company, as well as the post -sinkhole liquidity crisis it suffered. Texas

Brine also argued that the lone Louisiana case mentioning recoverability of
capitalized interest, Firmin, did not create jurisprudence constante, and is not as

relevant as Legacy Vulcan would have the court believe.

Following submission of this motion to the trial court for ruling on the

pleadings pursuant to an agreement by the parties and the trial court, by judgment

signed on July 19, 2022, the trial court granted this motion for partial summary
judgment, and dismissed Texas Brine' s claim
against Legacy Vulcan for

capitalized interest ( also interchangeably characterized as " imputed interest" and

economic carrying cost of receivables") with prejudice.

25

Texas Brine now appeals this judgment arguing that courts from across the

country recognize this type of loss as legally cognizable. Texas Brine asserts that

the trial court ignored the ample record evidence demonstrating Texas Brine' s

decades -long practice of investing in its growth; but with the onslaught of the

sinkhole response costs,
Texas Brine suffered a liquidity crisis and the money

normally used for investment had to be put towards response costs instead.

Because the same dollar cannot be used twice, for reinvestment and response,

Texas Brine urges its claim is cognizable and well- documented. Lastly, Texas

Brine argues that the trial court erred in dismissing Texas Brine' s claim on

summary judgment solely because it previously denied a claim by Pontchartrain,

for losses caused by its alleged inability to invest its own funds.

Judicial estoppel prohibits parties from deliberately changing positions

according to the exigencies of the moment. The doctrine is intended to prevent the

perversion of the judicial process and prevents playing fast and loose with the
courts. Lowman v. Merrick, 2006- 0921 ( La. App. 1st Cir. 3/ 23/ 07), 960 So. 2d

84, 92. In determining whether to apply judicial estoppel, courts look to whether:

1) the party against whom judicial estoppel is sought has asserted a legal position

that is plainly inconsistent with a prior position; ( 2) a court accepted the prior

position; and ( 3) the party did not act inadvertently. Hawkins v. Meridian

Resource and Exploration, LLC, 2016- 1545 ( La. App. 1st Cir. 12/ 6/ 17), 236

So. 3d 610, 618, writ denied, 2418- 0027 ( La. 4/ 16/ 18), 240 So. 3d 920. Because

Legacy Vulcan' s argument in favor of summary judgment was one of estoppel, we

will look to the factors to determine its applicability in this instance.

In considering the first prong of this test, whether Texas Brine has asserted a

legal position that is plainly inconsistent with a prior position, we find that it has.

In defending against Pontchartrain' s claim for capitalized interest damages, which

too sought damages for the lost use of capital that would have otherwise been

26

reinvested within the company rather than repairs to pipelines damaged by the

sinkhole, Texas Brine asserted that such damages are not recoverable under

Louisiana law because it would be duplicative of prejudgment interest. Texas

Brine explained that the Louisiana Supreme Court defined prejudgment interest as

the use which the defendant has had of the money found to be owed to the

plaintiff."
Texas Brine further asserted that had Pontchartrain actually incurred

and paid interest on funds borrowed to complete repairs, those funds would be

recoverable, citing Firmin, 595 So. 2d at 1171. Concluding, Texas Brine argued,

Pontchartrain was not entitled to an award for its alleged lost use of funds, given

that the capitalized interest Pontchartrain sought to recover did not represent

expenditures resulting from the borrowing of funds, but was essentially a claim to

recover prejudgment legal interest twice. Thus, Texas Brine urged the trial court to

refuse Pontchartrain' s request for recovery of capitalized interest, especially since

prejudgment interest was recoverable in this case. Presently, Texas Brine argues

just the opposite, that despite any availability of prejudgment interest, it should be

able to recover as damages the lost use of capital it had to use because of the

sinkhole rather than being able to reinvest that money within its own company.

The next prong of the test, whether the trial court accepted Texas Brine' s

prior position, is easily satisfied as evidenced by the trial court' s prior judgment

and reasons therefor. In dismissing Pontchartrain' s capitalized interest claim, the

court restated Texas Brine' s argument that the type of capitalized interest

Pontchartrain was attempting to recover was impermissible under Louisiana law.

Specifically, the court noted that had Pontchartrain actually incurred and paid

interest on funds borrowed for the express purpose of funding repairs, those funds
would be recoverable, citing Firmin, 595 So. 2d at 1171. However, because

Pontchartrain' s claim was for lost opportunity for the capital spent repairing the
sinkhole
damage rather than reinvesting within itself, that claim was not

27

recoverable. The trial court then noted the Louisiana Supreme Court' s definition

of prejudgment interest as being very similar to Pontchartrain' s claim. The court

stated that prejudgment interest is recoverable in tort cases. Thus, the court

concluded that any award of prejudgment interest would make Pontchartrain whole

for the loss of use of its capital incurred in its post -sinkhole repairs. Accordingly,

Pontchartrain was not entitled to an additional award for its alleged lost use of

funds, given that the capitalized interest it sought to recover did not represent

expenditures resulting from the borrowing of capital for the specific purpose of

funding Pontchartrain' s repair projects resulting from the sinkhole.

The final prong of judicial estoppel is also satisfied as it appears unlikely

that Texas Brine inadvertently argued the opposite of what it is arguing now.

Rather, Texas Brine has been vigorously defending itself for over a decade in a

multitude of capacities against a multitude of parties, and therefore, has found

itself at times arguing conflicting legal theories depending on its adversary.

Despite Texas Brine' s best efforts, this court agrees with the trial court' s ruling

that Texas Brine' s claim for capitalized interest should be dismissed with

prejudice, finding Texas Brine is estopped from making such claims. Therefore,

we affirm the trial court' s July 19, 2022 judgment dismissing this claim with

prejudice.

MOTION TO STRIDE

On March 21, 2022, Legacy Vulcan moved to strike Texas Brine' s expert

reports and supplemental discovery responses and exclude testimony relating to
Texas Brine' s claim for " lost opportunity" damages. Specifically, Legacy Vulcan

sought to strike: 1)
the expert reports of Bruce Martin, dated February 8, 2022,

Robert W. Sneed, dated February 9, 2022, and Holly Sharp, dated February 17,
2022; 2) Texas Brine' s March 14, 2022 third supplemental and amended responses

and objections to Legacy Vulcan' s supplemental damages -related interrogatories

U-
13

and requests for production of documents and things, regarding allegations about

Texas Brine' s claims for the recovery of " lost opportunity" damage made the

subject of the expert reports; and 3) all evidence by Texas Brine of its " lost

opportunity" damage claims set forth and described in the expert reports and/or

third supplemental and amended responses and objections to Legacy Vulcan' s

supplemental damages -related discovery requests. Fundamentally, Legacy Vulcan

sought to exclude any evidence pertaining to a subset of Texas Brine' s lost profits

claim particularly regarding the sale of two of Texas Brine' s properties, Baytown

in 2013 and Napoleonville in 2015, to Texas Brine' s affiliates.

Legacy Vulcan argued that this specific lost opportunity claim should be

stricken as untimely, improper, prejudicial and unauthorized. Legacy Vulcan

initially argued that because these claims constitute a request for special damages,

which must be specifically plead under La. C. C.P. art. 861 and were not, the trial

court should not allow them now, mere months prior to the Phase 2 trial. Legacy

Vulcan explained that the unique structure of this litigation envisioned that all

claims would be plead prior to the Phase 1 liability trial, or by the August 2016
case management order deadline, with only incidental matters, damages and

insurance to be determined in later stages. Legacy Vulcan emphasized that while

Texas Brine took full advantage of this time to amend its pleadings and added

numerous claims sounding in tort and contract against Legacy Vulcan, it never
mentioned the sale of these two properties as a claim.

Second, Legacy Vulcan argued that evidence of this claim should not be

allowed because of Texas Brine' s failure to timely supplement its discovery
responses to identify this new " lost opportunity" damage claim, citing La. C. C. P.

art. 1428; or to name the claim in any of its discovery responses that it submitted in

2016, 2018, 2019, or as recently as December 2021. Legacy Vulcan argued that

although Texas Brine had asserted a claim for lost profits, that claim was

29

consistently described as being related to Texas Brine' s inability to drill additional

wells, namely the Oxy Taft 11 and 12 wells. Texas Brine never once alluded to

any facts that it would claim the sale of two of its properties, Baytown and

Napoleonville, to its own affiliates as potential claims under the lost profits

category, even though the sales had occurred in 2013 and 2015 respectively.

Legacy Vulcan concluded that because Texas Brine waited until the proverbial last

minute to announce this claim, Legacy Vulcan would have no time prior to the

Phase 2 trial to adequately prepare to defend this claim, and therefore, it should be

stricken.

Legacy Vulcan' s evidence introduced in support of this motion included the

discovery requests propounded by Legacy Vulcan on Texas Brine once this claim

was revealed, in an effort to demonstrate how much discovery and information

would actually be necessary to prepare to litigate this claim.

Legacy Vulcan also entered into evidence, Texas Brine' s May 27, 2016

amended answer and amended incidental demands which contained a section

dedicated to " lost profits and lost opportunities." In this amended and incidental

demand, Texas Brine pertinently averred as follows:

1.

Texas Brine has lost substantial business opportunities, both
throughout Assumption Parish and the State of Louisiana, as a direct
and proximate result of the acts and omissions of the other cross-

defendants, third -party defendants, and defendants -in -reconvention.

Fi

Prior to the appearance of the sinkhole, Texas Brine and Oxy
Chem had entered into negotiations whereby it was contemplated that
Texas Brine would drill two additional wells on the Napoleonville
Salt Dome, to be identified as the Oxy Taft # I I and Oxy Taft # 12
wells, and that these wells, once drilled would be operated by Texas
Brine for Oxy Chem' s benefit on a long-term basis...

30

3.

Texas Brine prepared and submitted permit applications on Oxy
Chem' s behalf in connection with the contemplated drilling of the
proposed Taft # 11 and Taft # 12 brine wells, shortly before the
Sinkhole appeared.

9

In the aftermath of the Sinkhole, however, Texas Brine could
not obtain regulatory authorization to proceed with any new drilling or
brine mining projects on the Salt Dome, and thus, it was unable to
proceed with the Taft # 11 and Taft # 12 project.

5.

Furthermore, due to the fault of other parties, which led to the
appearance of the Sinkhole, Texas Brine was unable to realize other
business opportunities and projects throughout the State.

N

Since August 3, 2012, Texas Brine has not been approved for
any new drilling or operational permits in the State of Louisiana.

N

Prior to the sinkhole, Texas Brine had an established track

record of drilling and operating new wells on a regular basis, and the
decline in its business is attributable to the acts and omissions of the
various cross- defendants, third -party defendants, and defendants -in -
reconvention.

1

Texas Brine is entitled to recover all lost profits attributable to
its loss of business opportunities, revenue, and production based on
projects to be located on the Salt Dome ( including, but not limited to,
the contemplated Oxy Taft # 11 and Oxy Taft # 12 Wells) and

throughout the state of Louisiana.

Legacy Vulcan also introduced into evidence numerous discovery requests

propounded on Texas Brine, as well as its answers, to demonstrate that Texas

Brine had ample opportunity to reveal this particular claim, and never did. One

such interrogatory propounded by Legacy Vulcan asked Texas Brine to provide at

a minimum the following information: for all damages, the category and nature of

the damages, the amounts of all such damages, the methodology or methodologies

31

used for determining such damages, for damages relating to lost revenue, lost

production, lost profits and lost business opportunities. Legacy Vulcan further

asked Texas Brine to identify what specific business opportunities it maintained

that it lost or would lose. Then specifically, Legacy Vulcan asked, with respect to

Texas Brine' s lost opportunity claim, for Texas Brine to produce all documents

relating to the " substantial business opportunities" it claimed to have lost as a

result of the acts of any cross- defendants, third party defendants, and defendants -

in -reconvention, including but not limited to, all permit applications, plans,

contracts, negotiations, budgets, projections, forecasts, proposals, ledgers, meeting
minutes,
correspondence with regulatory agencies and/ or potential customers or

others who would be aware of and/ or involved in these " substantial business

opportunities."
Texas Brine' s response to these questions was that any expert

reports and/ or materials contemplated by these requests would be provided in

compliance with the requirements of the Louisiana Code of Civil Procedure and

the trial court' s scheduling order.

Legacy Vulcan also introduced discovery from federal litigation involving
the sinkhole,
which also inquired as to Texas Brine' s lost opportunity claim.

Similarly, Texas Brine only referred to its inability to operate wells on the Salt

Dome and transport brine through its pipelines as its lost business opportunity.

Texas Brine opposed this motion arguing that its expert reports were

delivered timely according to the parties' case management order and Legacy

Vulcan had not been prejudiced in receiving these timely -issued reports while

having months to depose these witnesses in advance of trial. Texas Brine asserted

this was just Legacy Vulcan' s attempt to strike claims in a procedurally improper
way. Texas Brine further argued that a clear reading of its various petitions

throughout the years demonstrates that it has plead a lost opportunity claim for

nearly the span of this litigation, which claim was never limited to only the drilling

32

of Oxy Taft 11 and 12; thereby notifying Legacy Vulcan that more claims could be

made under the lost profit umbrella should they be discovered.

Texas Brine introduced the following as evidence during the hearing, in

opposition to Legacy Vulcan' s motion to strike: the deposition transcripts of Mr.

Sneed, taken March 16 and 18, 2022, and Mr. Martin, taken March 23- 25, which

spanned 375 pages and 405 pages, respectively. Texas Brine used these to

demonstrate that since the discovery of this claim, Legacy Vulcan has had ample

opportunity to depose two of the three experts whose reports Texas Brine relied on

to support its claim. Also used as evidence, the amended and restated case

management order dated January 31, 2022, which set the supplemental discovery
response cutoff date for April 19, 2022, and the expert report cutoff date for

February 17, 2022, the date Texas Brine provided the expert reports in question to

Legacy Vulcan. Texas Brine also introduced into evidence a copy of the email

providing Legacy Vulcan with its expert reports, along with its discovery

responses to demonstrate that Texas Brine was compliant with the court' s case

management dates.

Texas Brine also relied on the same amended answer and incidental

demands as Legacy Vulcan, wherein Texas Brine asserted it was " entitled to

recover all lost profits attributable to its loss of business opportunities, revenue,

and production based on projects to be located on the Salt Dome ( including, but

not limited to, the contemplated [ Taft 11 ] and [ Taft 12] Wells) and throughout the

state of Louisiana."

On April 5, 2022, this motion was heard. Following party arguments, the

trial court noted that Legacy Vulcan had issued interrogatories to Texas Brine three

times seeking to determine the scope of Texas Brine' s lost profit claim, and in no

way did Texas Brine even hint about this claim. Ultimately, the trial court took

this motion under advisement.

33

On April 26, 2022, the trial court signed a judgment granting Legacy

Vulcan' s motion to strike the expert reports of Bruce Martin dated February 8,

2022, Robert W. Sneed dated February 9, 2022, and Holly Sharp dated February

17, 2022. The trial court also struck Texas Brine' s March 14, 2022 third

supplemental and amended responses and objections to Legacy Vulcan' s

supplemental damages -related interrogatories and requests for production of

documents and things, as well as all testimony and evidence by Texas Brine of its

lost opportunity" damage claim set forth and described in the aforementioned

expert reports and discovery responses. In its reasons for judgment, the trial court

acknowledged that although the sale of these two properties by Texas Brine to its

subsidiaries occurred in 2013 and 2015, prior to producing the expert reports in

question, Texas Brine never mentioned that it was asserting this claim related to

these properties. Although Texas Brine amended its claims many times during the

course of litigation, it never articulated or expanded on any claim for " lost

opportunity" damages, and also had not, prior to March 14, 2022, supplemented

any of its discovery responses with any information regarding these sales.

Ultimately, the trial court found that Texas Brine' s dilatory attempt to formulate its

new claim for millions of dollars with trial imminently drawing near must not be

allowed, and Legacy Vulcan' s motion to strike was granted.

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.

Whether a motion to strike should be granted pursuant to Article 964 rests in

the sound discretion of the trial court and is reviewed under the abuse of discretion

standard. Thurman v. Aguilar, 2021- 1514 ( La. App. 1st Cir. 6/ 22/ 22), 343 So. 3d

784, 791, writ denied, 2022- 01110 ( La. 11/ 1/ 22), 349 So. 3d 7, citing, Cole v. Cole,

34

2018- 0523 ( La. App. lst Cir. 9/ 21/ 18), 264 So. 3d 537, 544. Motions to strike are

disfavored and infrequently granted. This is because striking a portion of a

pleading is a drastic remedy, and because motions to strike 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 plaintiffs

claims as to be unworthy of any consideration and that their presence in the

pleading would be prejudicial to the moving party. A motion to strike is a means

of clearing up the pleadings, not a means of eliminating causes of action or

substantive allegations. Id.

Although styled as a " motion to strike," Legacy Vulcan' s motion in actuality

appears to be one for sanctions for violation of La. C. C. P. art. 1428. 8

Louisiana Code of Civil Procedure article 1428 provides, in pertinent part:

A party who has responded to a request for discovery with a response
that was complete when made is under no duty to supplement his
response to include information thereafter acquired, except as follows:
1) A party is under a duty seasonably to supplement his response
with respect to any question directly addressed to the identity and
location of persons having knowledge of discoverable matters, and the
identity of each person expected to be called as an expert witness at
trial, the subject matter on which he is expected to testify, and the
substance of his testimony.
2) A party is under a duty seasonably to amend a prior response if
he obtains information upon the basis of which he knows that the
response was incorrect when made, or he knows that the response
though correct when made is no longer true and the circumstances are
such that a failure to amend the response is in substance a knowing
concealment.

The failure to timely supplement discovery responses, when a duty to do so
exists, may trigger sanctions. Courts have regularly exercised their inherent
powers
by imposing sanctions
for failing to timely supplement discovery

responses. Chapman v. Regional Transit Authority/TSMEL, 95- 2620 ( La.

App. 4th Cir. 10/ 2/ 96), 681 So. 2d 1301, 1305. A trial court generally has great

8 The technical name given to a motion is of little importance. See La. C. C. P. art. 962.

IN

discretion to determine whether to admit testimony after a party objects on the

ground that his opponent failed to fulfill the statutory mandate of La. C. C.P. art.

1428 to supplement discovery requests. Jordan v. Intercontinental Bulktank

Corp., 621 So. 2d 1141, 1151- 52 ( La. App. 1st Cir.), writs denied, 623 So. 2d 1335,

1336 ( La. 1993), cert. denied, 510 U.S. 1094, 114 S. Ct. 926, 127 L.Ed.2d 219

1994). While the trial judge has great discretion in deciding whether to receive or

refuse the testimony objected to on the grounds of failure to abide by the statutory

mandate, any doubt must be resolved in favor of receiving the testimony. Maddox

v. Bailey, 2013- 0564 ( La. App. 1st Cir. 5/ 19/ 14), 146 So. 3d 590, 595. When a

party has not satisfied the technicality of supplementing discovery responses, the

reviewing court can look to the record for a willful or negligent failure to disclose

new information in determining whether the trial judge abused his discretion. Id.

Based on the evidence presented with regard to this motion, this particular

claim arose,
at the latest in 2015 with the sale of the Napoleonville property.

Texas Brine asserted a lost profits claim generally, and specifically plead that it

lost the opportunity to drill and operate two additional wells as a part of that claim.

Throughout its pleading amendments as well as discovery exchanges, Texas Brine

never identified the sale of these properties as a subset of its lost profits claim, and

did not do so, until the respective discovery deadlines in the Phase 2 damages trial.

Considering the history of this proceeding and the timeline established by the

record evidence, we find no error in the trial court' s implicit finding that a certain

degree of willfulness was present on the part of Texas Brine, and its lack of

supplementation of discovery and expert reports, which if allowed, would either

result in further delay of this decade- long litigation, or hinder Legacy Vulcan' s

ability to defend itself against this claim. Therefore, we find no abuse of the trial

court' s discretion in its April 26, 2022 judgment, granting Legacy Vulcan' s

motion to strike" all discovery and expert reports in support of Texas Brine' s lost

g

profits claim strictly concerning the sale of its Baytown and Napoleonville

properties.

We affirm the rulings on the motions challenging the recoverable amount of

damages, and thus also affirm the parties' December 1, 2022 stipulated judgment

insofar as the parties determined the total amount of damages to be allocated

between the at -fault parties.

ASSIGNMENT OF SALT LEASE

On March 4, 2022, Legacy Vulcan moved for partial summary judgment

seeking to dismiss with prejudice Texas Brine' s claims under the Assignment of

Salt Lease. Within this motion, Legacy Vulcan alleged Texas Brine sought to

exercise default remedies against it under Sections 6. 01 and 6. 02 of the

Assignment of Salt Lease based on Legacy Vulcan' s failure to " operate" on the

Salt Lease premises in a prudent manner, and to conduct its operations in

compliance with state and local regulations.9 In so doing, Texas Brine sought to

9 In its Exceptions, Answer, Affirmative Defenses, and Third -Party Demand filed August 2,
2013, Texas Brine averred the following third -party demand against Legacy Vulcan:
Count 5 — Breach of Contract —Vulcan

55.

Pursuant to the terms of the Assignment of Salt Lease, [ Legacy] Vulcan assumed all
obligations of the lessee in and under the Salt Lease and agreed to perform all covenants and
agreements of the lessee contained in the Salt Lease.

56.

Section 6. 01( d) of the Assignment of Salt Lease provides that [ Legacy] Vulcan shall be
in default if it fails to comply with its obligations under the Assignment of Salt Lease, including
the obligation to perform all covenants and agreements of the lessee contained in the Salt Lease.

57.

Under Section 14 of the Salt Lease, [ Legacy] Vulcan' s obligations, as lessee, include the

obligation to " operate" on the Oxy Land in a " prudent manner" and to conduct its operations in
compliance with the regulations of all governmental agencies.

58.

Legacy] Vulcan did not act as a reasonably prudent lessee in its extraction of salt from
the Oxy Land because, at all relevant times, it was aware of the risks associated with brine
production from the Oxy Land, including Well # 3, and [ Legacy] Vulcan did not instruct its
operator, [ Texas Brine],
to revise its mining plan for any of the brine production wells, including
Well #3, to address those risks.

37

recover from Legacy Vulcan damages, attorney' s fees, and costs. However,

Legacy Vulcan asserted that these duties belonged to Texas Brine, and therefore,

Texas Brine had no recourse against Legacy Vulcan for Texas Brine' s own breach.

Attached in support of the motion was the original Salt Lease, as well as the

Amended and Restated Salt Lease, which delineated the rights and obligations

between Texas Brine and Hooker Chemicals ( Oxy' s predecessor). Of note within

the Amended and Restated Salt Lease, is Section 14 wherein Texas Brine agreed to

operate on the leased premises in a prudent manner and to conduct its operations in

compliance with the regulations of all governmental agencies.

Also attached as evidence was the Assignment of Salt Lease wherein Texas

Brine, as owner of the aforementioned Salt Lease,
assigned same to Legacy

Vulcan.
In the Assignment' s preamble, the parties explained their relationship and

mentioned other interrelated contracts into which they had already entered

including an Operating Agreement, which provided that Legacy Vulcan had

engaged the services of Texas [ Brine] to perfonn all or part of the duties and

obligations of [Legacy] Vulcan under the Facilities Lease and the Salt Lease." The

pertinent clauses within the Assignment are:

4. 01 In consideration of the Assignment made herein, [ Legacy]
Vulcan hereby assumes all obligations of the Lessee in and under the
Salt Lease effective as of this date and, in this connection, [ Legacy]
Vulcan agrees without limitation, as follows:

a) [
Legacy] Vulcan shall pay all royalty, minimum royalty and
all other payments, contingent or otherwise, required to be made by
the Lessee under the Salt Lease...

b) [ Legacy] Vulcan or its operators shall perform all covenants
and agreements of the Lessee in the Salt Lease on or before the dates
such performance is required by the Salt Lease...

59.

As such, [ Legacy] Vulcan is in default of the Assignment of Salt Lease, and [ Texas
Brine] is entitled to recover damages for [ Legacy] Vulcan' s breach, including all legal fees and
other costs and expenses pursuant to Sections 6. 01( d) and 6. 02 of the Assignment of Salt Lease.

c) [ Legacy] Vulcan shall perpetuate the Salt Lease in force and
effect for the term thereof and shall permit no default on the part of
the Lessee in the Salt Lease subject to the Special Termination Right
set forth under Section 4 of the Salt Lease.

6. 01 The following events will constitute defaults (" Defaults")
under this Assignment:

Legacy] Vulcan shall fail to make any payment of any
a) [

royalty, minimum royalty or any other sum required of the Lessee
under the Salt Lease and/or comply with any covenant or agreement
of the Lessee as provided in the Salt Lease.

b) [ Legacy]
Vulcan shall fail to make any payment of any
Basic Rent or improperly fail to pay any Supplemental Rent or other
sum required Legacy] Vulcan in the Facilities Lease and/ or
of [

comply with any covenant or agreement of [Legacy] Vulcan, as the
lessee, in the Facilities Lease.

c) [ Legacy] Vulcan shall fail to make any payment provided
for in the Agreement Relative to Financing in favor of the Leasehold
Mortgagee.

d) [ Legacy] Vulcan shall fail to comply with its obligations
under this Assignment.

Legacy] Vulcan shall become insolvent or bankrupt or
e) [

make any assignment for the benefit of creditors or consent to the
appointment of a trustee or receiver for a substantial part of its
property...

6. 02 Upon the occurrence of any Default, and at any time
thereafter so long as the same shall be continuing, Texas [ Brine] may,
at its option, by notice to [ Legacy] Vulcan, declare this Assignment to
be in default. So long as [ Legacy] Vulcan shall not have remedied all
outstanding Defaults, it is agreed, as between Texas [ Brine] and
Legacy] Vulcan, that Texas [ Brine] may do, and [ Legacy] Vulcan
shall comply with, one or more of the following, as Texas [ Brine]
shall in its sole discretion elect, to the extent permitted by, and subject
to compliance with, any mandatory requirements of applicable law in
effect: (
i) Texas [ Brine] may terminate this Assignment upon the date
specified in a written termination notice to [ Legacy] Vulcan; or ( ii)
Texas [ Brine] may cure or endeavor to cure such Default, whereupon
Legacy] Vulcan shall reimburse Texas [ Brine] all sums paid by
Texas [ Brine] for the account of [Legacy] Vulcan and the reasonable
cost and expense actually incurred by Texas [ Brine] in curing or
endeavoring to cure such Default together with interest thereon at the
rate of 10. 75% per annum; (
iii) Texas [ Brine] may exercise any other
right or remedy which may be available to Texas [ Brine] under

applicable law or proceed by appropriate court action to enforce the
terms hereof or to recover damages for the breach hereof.

39

Except as otherwise provided above, [ Legacy] Vulcan shall be
liable for all legal fees and other costs and expenses incurred by Texas
Brine] by reason of the exercise of [Texas Brine' s] remedies with
respect thereto. No remedy referred to in this Section is intended to

be exclusive, but each shall be cumulative and in addition to any other
remedy referred to above or otherwise available to Texas [ Brine] at
law or in equity...

Legacy Vulcan also attached as evidence, Texas Brine' s third -party demand,

wherein Texas Brine averred the parties' roles generally as: Legacy Vulcan owned

the Geismar Plant and was obligated to pay royalties to Oxy for the salt extracted

from the Salt Lease property, during which time, Texas Brine served as Legacy

Vulcan' s operator in producing and supplying brine to the Geismar Plant under the

Operating Agreement. More specifically, Texas Brine averred the OG3 was drilled

and owned by Legacy Vulcan and operated by Texas Brine pursuant to the

Operating Agreement.

Legacy Vulcan also attached as evidence the deposition excerpts of Bruce

Martin where he attested that until Legacy Vulcan' s sale to Oxy in 2005, he was

unaware of Legacy Vulcan defaulting on the Assignment of Salt Lease. Also

attached was the Amended and Restated Operating Agreement, which provides in

pertinent part:

WHEREAS, Texas [ Brine] Legacy] Vulcan also entered
and [

into an Operating and Supply Agreement... dated as of October 29,
1975, pursuant to which Texas [ Brine] operates the facilities leased to
Legacy] Vulcan pursuant to the Original Facilities Lease, as well as
facilities owned by [ Legacy] Vulcan and acquired after the

commencement date of the Original Operating Agreement by reason
of the replacement, modification, and expansion thereof, for and on
behalf of [ Legacy] Vulcan, for the purpose of producing and
delivering salt brine to [ Legacy] Vulcan' s plant at Geismar,
Louisiana; and

WHEREAS, pursuant to that certain Assignment of Salt Lease
between Texas [ Brine] and [ Legacy] Vulcan dated as of October 27,
1976, Texas [ Brine] assigned all of its right, title and interest as lessee
in and under the Salt Lease to [ Legacy] Vulcan, and [ Legacy] Vulcan
assumed all obligations of Texas [ Brine] as lessee in and under the
Salt Lease; and

iI

Facilities" means all improvements and property, whether real
immovable or personal movable, constructed or used, or obtained by
Texas [ Brine] or [ Legacy] Vulcan for construction or use, in
connection with or incidental to the production and extraction of Salt
and Brine from the Salt Lease Premises and the transportation and
delivery thereof to the Delivery Point at [ Legacy] Vulcan' s Plant...

Section 2. 2 Operation of Premises. Texas [ Brine] shall operate
for the account of [Legacy] Vulcan all of the Leased Premises, as well
as facilities owned by [ Legacy] Vulcan by reason of replacement,
modification and expansion, for and during the full term of said

Lease, and shall produce and deliver for the account of [ Legacy]
Vulcan from such facilities to [ Legacy] Vulcan at Geismar, Louisiana,
Salt in the form of Brine in accordance with the terms of this
Agreement.

Section 2. 3 Maintenance. Texas [ Brine] keep the
shall ( a)

Facilities and other Leased Premises in as reasonably safe condition as
its operations permit, ( b) keep the Facilities and other improvements
and Lease Premises located on the Salt Lease Premises, whether
leased to [ Legacy] Vulcan or owned by it, and all other property
leased to [ Legacy] Vulcan under the Lease ...in good repair and
operating condition...making from time to time all necessary and
proper repairs thereto ...and ( c)
comply with, perform, and fulfill all
obligations of [Legacy] Vulcan to Texas [ Brine] under the Lease with
respect to the maintenance, operation, and preservation of the Leased
Premises.

Section 12. 6 Compliance with Law: Use
of Hazardous
Materials. In the performance of its obligations under this Agreement,
Texas [ Brine] shall comply in all material respects with all laws, rules,
orders, ordinances, directions, regulations and requirements of federal,
state[,]
county and municipal authorities pertaining to its operation of
the Facilities and the other Leased Premises, and with the recorded
covenants, conditions and restrictions, regardless of when they
become effective...and all applicable Environmental Laws.

Texas Brine opposed the motion, asserting numerous arguments including:

that Legacy Vulcan did not assign all of the lessee' s obligations under the Salt

Lease to Texas Brine, and that the Amended Operating Agreement charged Texas

Brine with Legacy Vulcan' s obligations only with respect to the Facilities Lease

rather than the Salt Lease. Texas Brine continued to argue that Legacy Vulcan' s

duties to act as a prudent lessee are distinct from Texas Brine' s duties as the brine

well operator, and although Texas Brine was obligated to perform certain

operational duties, it never re -assumed lessee duties under the Salt Lease. Further,

41

Texas Brine argued that because Legacy Vulcan had already been found to have

breached its duties as a mineral lessee, it was clearly in default of the Assignment

of Salt Lease.

Following the hearing on Legacy Vulcan' s motion for partial summary

judgment, the trial court took the matter under advisement and signed a judgment

on May 5, 2022, granting Legacy Vulcan' s motion for partial summary judgment

dismissing with prejudice Texas Brine' s claim under the Assignment of Salt Lease.

Texas Brine now appeals, contending that the trial court erred in ignoring

this court' s repeated findings in the Phase 1 liability trial that Legacy Vulcan

breached its duty as a prudent lessee of the Salt Lease. Texas Brine asserts those

breaches are defaults by Legacy Vulcan under the Assignment of Salt Lease.

Texas Brine further argues that the trial court erred in confusing Texas Brine' s

operational obligations under the Amended Operating Agreement with Legacy

Vulcan' s duties as the lessee under the Salt Lease. Finally, Texas Brine argues that

genuine issues of material fact exist as to the scope of the obligations assigned to

Legacy Vulcan by Texas Brine in the Assignment of Salt Lease and Texas Brine' s

corresponding contractual duties.

Interpretation of a contract is the determination of the common intent of the

parties. La. C. C. art. 2045. Courts are bound to give legal effect to all contracts

according to the true intent of the parties. Belle Pass Terminal, Inc. v. John, Inc.,

92- 1544 ( La. App. 1 st Cir. 3/ 11/ 94), 634 So. 2d 466, 479, writ denied, 94- 0906 ( La.

6/ 17/ 94), 638 So. 2d 1094. When the words of a contract are clear and explicit and

lead to no absurd consequences, no further interpretation may be made in search of
the parties' intent. La. C. C. art. 2046. In instances where the mutual intention of

the parties has not been fairly explicit, the court may consider all pertinent facts

and circumstances, including the party' s own conclusions rather than adhere to a

42

forced meaning of the terms used in the contract. Belle Pass Terminal, Inc., 634

So. 2d at 479- 480.

The words of a contract must be given their generally prevailing meaning.

La. C. C. art. 2047. Intent is to be determined in accordance with the plain,

ordinary, and popular sense of the language used and by construing the entirety of

the document on a practical, reasonable, and fair basis. Belle Pass Terminal, Inc.,

634 So. 2d at 480. Words susceptible of different meanings must be interpreted as

having the meaning that best conforms to the object of the contract. La. C. C. art.

2048. Each provision in a contract must be interpreted in light of the other

provisions so that each is given the meaning suggested by the contract as a whole.

La. C. C. art. 2050. A doubtful provision must be interpreted in light of the nature

of the contract, equity, usages, the conduct of the parties before and after the

formation of the contract, and of other contracts of a like nature between the same

parties. La. C. C. art. 2053.

Louisiana Revised Statutes 31: 122 provides a mineral lessee is not under a

fiduciary obligation to his lessor, but he is bound to perform the contract in good

faith and to develop and operate the property leased as a reasonably prudent

operator for the mutual benefit of himself and his lessor. Parties may stipulate

what shall constitute reasonablyprudent conduct on the part of the lessee.

Emphasis added).

The Salt Lease, which originated all of the parties' rights and obligations

provides the Lessee with two main obligations, to pay royalties and to operate on

the premises in a prudent manner, which includes running periodic tests on the

premises, and abiding by state and local regulations. Using this Lease as a base,

Texas Brine and Legacy Vulcan began to craft their respective duties through a

series of contracts including the Operating Agreement, whereby Texas Brine

obligated itself to operate on the property in a prudent manner, abide by

43

government regulations and run periodic testing and Legacy Vulcan agreed to

compensate Texas Brine. With this delegation of obligations in place, the parties

entered into the Assignment of Salt Lease, wherein the parties acknowledged these

established stipulations when Legacy Vulcan took on all of the obligations of the

Lessee of the Salt Lease, including the obligation to pay royalties to Oxy, but

noting that any actual operation would be done by either it or its operator ( Texas

Brine). In this context, we agree with Texas Brine that Legacy Vulcan did not

assign back" all of its Lessee obligations to Texas Brine, because Legacy Vulcan

maintained the obligation to pay. However, any operational obligations were

clearly given to and accepted by Texas Brine.

This court acknowledges that in the Phase 1 liability opinion, Legacy Vulcan

was found to have breached its duty as a prudent lessee. However, the purpose of

Phase 1 was to determine what caused the sinkhole to form and which parties were

at fault under M theory of law for causing the formation of the sinkhole.

Pontchartrain Natural Gas System, 317 So. 3d at 725. ( Emphasis added.) This

court noted that by statute, Legacy Vulcan had a general duty to act as a prudent

lessee, which duty it breached. However, contrary to Texas Brine' s argument,

there was no finding that Legacy Vulcan breached a particular obligation found in

the Salt Lease, or Assignment thereof. Pontchartrain Natural Gas System, 317

So. 3d at 755- 57. Instead, it was Texas Brine that was found to be in breach of its

actual contractual obligations for not prudently operating the OG3. Id. at 758- 59.

For the foregoing reasons, we affirm the trial court' s May 5, 2022 judgment

granting Legacy Vulcan' s motion to dismiss with prejudice Texas Brine' s claims

under the Assignment of Salt Lease.

INTENTIONAL TORT

On May 19, 2022, Texas Brine moved for partial summary judgment

regarding Legacy Vulcan' s liability as an " intentional tortfeasor" for Texas Brine' s

damages. Within this motion, Texas Brine requested that Legacy Vulcan be found

100% liable for the damages resulting from the sinkhole in accordance with La.

C. C. art. 2323( C), since Legacy Vulcan was found to be an intentional tortfeasor.

Texas Brine emphasized this court' s finding that Legacy Vulcan " intentionally
omitted" crucial information at the time of the sale of its chloralkali business to

Oxy, to demonstrate that Legacy Vulcan had been adjudicated an intentional

tortfeasor. Pontchartrain Natural Gas System, 317 So. 3d at 756- 57. Thus,

Texas Brine concluded Legacy Vulcan, an intentional tortfeasor, could not benefit

from comparative fault by reducing its liability for damages owed to Texas Brine,

a mere negligent party. Alternatively, Texas Brine argued that if Legacy Vulcan
should not be found 100% at fault, then Legacy Vulcan should at least be 70% at

fault, 15% for its own fault, and 55% for Texas Brine and its affiliate.

Attached in support of this motion were transcript excerpts from the Phase 1

trial regarding the circumstances around the 2004- 2005 sale of Legacy Vulcan' s

chloralkali business to Oxy. In connection with the sale, Legacy Vulcan requested

Texas Brine to produce a summary regarding salt reserves remaining in the Salt

Lease Premises, which Texas Brine provided, while also noting that there were

concerns with the OG3' s proximity to the edge of salt. Texas Brine explained the

proximity was concerning because there was a real risk of losing the well

prematurely, due to washing out of the formation. The email evidencing this

exchange was also attached in support of this motion, as was the email from

Legacy Vulcan to Oxy which reflected the salt reserve numbers provided by Texas

Brine, but failed to include any information about the proximity of the OG3 to the
salt dome edge and/ or risk of a washout.

Legacy Vulcan opposed this motion, arguing that its negligence was

affirmed by the First Circuit with its allocation of 15% comparative fault to Legacy

Vulcan.
Legacy Vulcan further argued that any intentional acts mentioned in the

GE

Phase 1 opinion were strictly between Legacy Vulcan and Oxy, and were discussed

in order to resolve Legacy Vulcan' s subsequent purchaser doctrine argument on

appeal.

Legacy Vulcan supported its opposition, in pertinent part, with this court' s

Phase 1 liability opinion, as well as Texas Brine' s application for writs to the

Louisiana Supreme Court, wherein it argued Legacy Vulcan should be 100% at

fault because its intentional acts caused the sinkholes

A hearing on this motion was held on June 21, 2022. Following party

arguments, the trial court denied the motion, concluding although there had been a

finding of an intentional act by this court, there was no finding of an intentional

tort. A judgment reflecting this ruling was signed by the trial court on July 19,
2022.

Texas Brine initially sought this court' s review via supervisory writ, which

was referred to an appeal panel deciding issues of fraud; however, this court found

the matter not sufficiently connected to the limited appeal. See Pontchartrain

Natural Gas System v. Texas Brine Company, LLC, 2022- 0594/ 2022- 0961 ( La.

App. 1st Cir. 1/ 20/ 23), 361 So. 3d 491, 497 n. l, writ denied, 2023- 00255 ( La.

6/ 7/ 23), 361 So. 3d 983.

In the present appeal, Texas Brine argues the trial court erred in its

application of comparative fault principles, ignoring article 2323( C), despite this

court' s findings that Legacy Vulcan' s tortious acts were intentional. Texas Brine

emphasized that this court " repeatedly found that [ Legacy] Vulcan acted

intentionally' in causing the sinkhole," citing, Pontchartrain Natural Gas

System, 317 So. 3d at 756, 757, 760- 61.

Louisiana Civil Code article 2323 provides in pertinent part:

A. In any action for damages where a person suffers injury, death, or
loss, the degree or percentage of fault of all persons causing or
contributing to the injury, death, or loss shall be determined,

regardless of whether the person is a party to the action or a nonparty,
and regardless of the person' s insolvency, ability to pay, immunity by
statute, including but not limited to the provisions of [La.] R.S.

23: 1032, or that the other person' s identity is not known or reasonably
ascertainable. If a person suffers injury, death, or loss as the result
partly of his own negligence and partly as a result of the fault of
another person or persons, the amount of damages recoverable shall
be reduced in proportion to the degree or percentage of negligence
attributable to the person suffering the injury, death, or loss.

C. Notwithstanding the provisions of Paragraphs A and B, if a person
suffers injury, death, or loss as a result partly of his own negligence
and partly as a result of the fault of an intentional tortfeasor, his claim
for recovery of damages shall not be reduced.

After reviewing the evidence presented as well as this court' s Phase 1

liability opinion, we affirm the trial court' s ruling. In the Phase I liability appeal,

Legacy Vulcan assigned as error, any imposition of liability upon it by the trial

court, due to Legacy Vulcan' s status as a former owner of property when the

sinkhole occurred. Pontchartrain Natural Gas System, 317 So. 3d at 739. With

regard to this assignment, this court explained:

As between Legacy Vulcan and Oxy, we find Legacy Vulcan
owed a duty to disclose the risks associated with the caverns on the
North 40 upon the sale of Legacy Vulcan' s chloralkali business which
included the Salt Lease to Oxy. If the former owner, prior to the sale
of property, knows of a defective condition and conceals the problem,
rather than repairing or at least advising of the condition, it may be
responsible for plaintiff' s injuries. The subsequent sale of the

property, as a matter of law, does not automatically absolve the
former owner of its negligent acts. At the very least, the former
owner has a duty to advise or make the new owner aware of
conditions that could pose a danger to others. Thus, despite Legacy
Vulcan' s arguments to the contrary, where a defective thing is
involved, not only can its owner be responsible for damages, but also
the party who actually created the risk whether or not he is the owner.
Internal citations omitted.]

Pontchartrain Natural Gas System, 317 So. 3d at 754- 55.

Following this recital of law, this court highlighted Legacy Vulcan' s actions

during the sale of its chloralkali business to Oxy, noting that it intentionally

omitted a portion of Texas Brine' s report that stated the OG3 was near the salt

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dome edge. Id. at 756. This court once again noted that Legacy Vulcan failed to

warn Oxy of the OG3' s closeness to the edge of the salt dome by " intentionally

omit[ ting] the portion of the 2004 email that specifically stated that the OG3 posed

the biggest concern on the North 40, as the data... suggested that the OG3 was very

close to the edge of salt and at real risk of being lost prematurely." Id. at 757.

Finally, in discussing fault allocations, this court found that the trial court was not

erroneous in finding that Legacy Vulcan breached its duty to disclose information

during its sale of its chloralkali business, by intentionally withholding the

information regarding the OG3' s potential breakthrough, and affirmed the 15%

fault assigned by the trial court. Id. at 760.

Thus, this court found that Legacy Vulcan was aware of a potential defect in

the property it was selling to Oxy, and not only failed to disclose the defect but

concealed it from Oxy, which in turn took away Legacy Vulcan' s subsequent

purchaser " shield."
The court further found that Oxy was a sophisticated party

with other wells in the area, but that did not relieve Legacy Vulcan from the

consequences of its own negligent actions. Pontchartrain Natural Gas System,

317 So. 3d at 757, 760- 61.

In the tort context, an " intentional act" requires the actor to either ( 1)

consciously desire the physical result of his act, whatever the likelihood of that

result happening from his conduct; or ( 2) know that the result is substantially

certain to follow from his conduct, whatever his desire may be as to that result.

See Matthews v. Turner Industries Group, L.L.P., 2020- 00493 ( La. 6/ 22/ 20),

297 So. 3d 723. The Phase 1 liability trial did not find Legacy Vulcan desired for

the sinkhole to occur, and there was no evidence presented that anyone was aware,

in 2004- 2005 when the sale occurred, that a sinkhole would emerge. Texas Brine' s

own witness testimony explained that the contemplated " wash out" would result in

premature closure of the well/cavern for mining, not a sinkhole. Pontchartrain

IN

Natural Gas System, 317 So. 3d at 731 (" Mr. Grabowski explained at trial that the

risk posed by the OG3' s proximity to the edge of the dome was not a sinkhole.")

Thus, although Legacy Vulcan actively concealed issues with the OG3, this did not

rise to the level of an intentional tort. Therefore, we affirm the trial court' s July

19, 2022, judgment denying Texas Brine' s motion for partial summary judgment

regarding Legacy Vulcan' s liability as an intentional tortfeasor for Texas Brine' s

damages.

AMENDED OPERATING AGREEMENT

On November 17, 2021, Legacy Vulcan moved for partial summary

judgment seeking to dismiss with prejudice Texas Brine' s claims under the

Amended Operating Agreement. Within this motion, Legacy Vulcan argued in the

alternative. First, Legacy Vulcan argued that Texas Brine could not prove Legacy

Vulcan breached the Amended Operating Agreement while the contract was in

effect. Legacy Vulcan asserted that under the Amended Operating Agreement, it

was only obligated to make timely payments to Texas Brine. Citing to the trial

court' s prior ruling finding that the Amended Operating Agreement was cross -

extinguished in March 2008 due to confusion, Legacy Vulcan argued that no
10
breach of any obligation to pay had occurred up to that point. Because all of

Texas Brine' s contract claims with regards to the Amended Operating Agreement

arose after the emergence of the sinkhole in 2012, Texas Brine had no valid

to The issue of confusion was previously determined by this court in Pontchartrain Natural
Gas System, k/ d/ s Promix, L.L.C., and Acadian Gas Pipeline System v. Texas Brine

Company, LLC, 2022- 0446 ( La. App. lst Cir. 10/ 24/ 22), 354 So. 3d 48, writs denied, 2022-
01724, 2022- 01706 ( La. 2/ 7/ 23), 354 So. 3d 674, 676, citing, Florida Gas Transmission
Company, LLC v. Texas Brine Company, LLC, 2022- 0004 ( La. App. 1st Cir. 8/ 3/ 22), 348
So. 3d 93, writ denied, 2022- 01344 ( La. 12/ 20/ 22), 352 So. 3d 85. In these appeals, this court
found that although the obligations found within the Salt Lease were extinguished as a result of
confusion on March 27, 2008, and that the Amended Operating Agreement and Amended
Facilities Lease along with the Assignment of Salt Lease were cross -extinguished on that same
date, any actionable obligation between Texas Brine and Legacy Vulcan could still be enforced
even after extinguishment because neither of these parties were the cause of the extinguishment.
See Florida Gas Transmission Company, LLC, 348 So. 3d at 105.

iF

reimbursement or indemnity claims under the contract, as both arose well after the

extinguishment of the contract.

Alternatively, Legacy Vulcan argued that because Texas Brine breached the

agreement by failing to act as a prudent operator, citing Pontchartrain Natural

Gas System, 317 So. 3d at 758- 59, Texas Brine was barred from demanding

performance from Legacy Vulcan under the Amended Operating Agreement in

accordance with La. C. C. art. 1993.

In support of its motion, Legacy Vulcan attached as evidence, the Amended

Operating Agreement which contains the following indemnification clause:

Section 12. 3 Indemnification. ... Texas [ Brine]
Legacy]
and [

Vulcan shall each pay one- half of all losses and all claims, demands,
payments, suits, actions, recoveries, and judgments, ... of every nature
and description, brought, recovered or arising out of the joint and
concurring negligence of the parties...

Texas Brine opposed the motion asserting numerous arguments including:

that the trial court had already found that confusion did not terminate Legacy

Vulcan' s obligations created in the Amended Operating Agreement; that Legacy

Vulcan has already been found to have breached the Amended Operating

Agreement by its negligence in thinning the walls of the salt cavern, citing

Pontchartrain Natural Gas System, 317 So. 3d at 756- 57; that Legacy Vulcan

breached its duty to perform its contractual obligations in good faith; that there are

no reciprocal obligations that were breached in the Amended Operating

Agreement, thereby rendering La. C. C. art. 1993 inapplicable; and that the

indemnification clause found within the Amended Operating Agreement was an

independent clause that could survive despite any breach of this contract.

On December 16, 2021, Legacy Vulcan' s motion for partial summary

judgment dismissing Texas Brine' s claim under the Amended Operating

Agreement came for hearing. Following party arguments, the court took the matter

under advisement. On January 18, 2022, the trial court executed a judgment

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granting Legacy Vulcan' s motion for partial summary judgment and dismissing

with prejudice, Texas Brine' s claims against Legacy Vulcan under the Amended

Operating Agreement.

On appeal, Texas Brine has narrowed its argument regarding its Amended

Operating Agreement claims, focusing on the application of the indemnity clause.

Texas Brine asserts that the trial court erred in essentially rewriting the Amended

Operating Agreement by disregarding the parties' contractual indemnity provision

that allocated tort liability in the event of joint negligence. Moreover, Texas Brine

argues that the trial court misinterpreted La. C. C. art. 1993 and its applicability to a

contractual indemnity clause.

In opposition, Legacy Vulcan argues that Texas Brine' s interpretation of the

indemnity clause is incorrect, asserting that Section 12. 3 governs indemnity for

claims prosecuted against Texas Brine and Legacy Vulcan based on their joint and

concurring negligence, not Texas Brine' s breach of contract. Legacy Vulcan

further argues, there is nothing in the Amended Operating Agreement which

renders Legacy Vulcan, the customer to whom the operational obligations were

owed, liable to Texas Brine for its breach of those obligations. Instead, Texas

Brine, as the obligor and breaching party is liable for the damages caused by its

failure to perform a conventional obligation.

The general rules governing the interpretation of contracts apply in

construing a contract of indemnity. Dean v. Griffin Crane & Steel, Inc., 2005-

1226 ( La. App. 1st Cir. 5/ 5/ 06), 935 So. 2d 186, 191, writ denied, 2006- 1334 ( La.

9/ 22/ 06) 937 So. 2d 387. A contract of indemnity forms the law between the

parties and therefore must be interpreted according to its own terms and conditions.

The purpose of an indemnity agreement is to allocate the risk inherent in the

activity between the parties to the contract. Lieni v. Austin Power, Inc., 569

So. 2d 601, 608 ( La. App. 2nd Cir. 1990). The question to be considered in

51

determining whether an indemnity agreement is enforceable is " whether the risk

that resulted in the injury was one contemplated by the parties to the contract."

Perkins v. Rubicon, Inc., 563 So. 2d 258, 259 ( La. 1990).

Moreover, a contract of indemnity whereby the indemnitee is indemnified

against the consequences of his own negligence is strictly construed, and such a

contract will not be construed to indemnify an indemnitee against losses resulting

to him through his own negligent acts unless such an intention is expressed in

unequivocal terms. Berry v. Orleans Parish School Board, 2001- 3283 ( La.

6/ 21/ 02), 830 So. 2d 283, 285, citing Perkins, 563 So. 2d at 259. A clear reading of

the indemnity clause contained in the Amended Operating Agreement does provide

for indemnification for claims arising out of the parties' joint and concurring

negligence. Black' s law dictionary defines " concurrent negligence" as, " the

negligence of two or more parties acting independently but causing the same

damage;" and " joint negligence" as " the negligence of two or more persons acting

together to cause an accident." Black' s Law Dictionary 12" Edition ( 2024).

After reviewing the Amended Operating Agreement and considering other

summary judgment evidence, we find Legacy Vulcan failed to satisfy its summary

judgment burden of proof. La. C. C. P. art. 966( D)( 1). Contrary to Legacy

Vulcan' s arguments, whether Texas Brine or Legacy Vulcan breached their

respective contractual obligations is not pertinent to the consideration of whether

the indemnity clause found in Section 12. 3 applies. By its clear terms, the

obligations set forth in the indemnity provision are triggered by the parties'

negligence. The indemnity provision does not prohibit its application in favor of

or enforcement by a breaching party. Therefore, La. C. C. art. 1993, concerning

default and performance of reciprocal obligations, does not bar enforcement of the

parties' indemnity obligations. Finding Legacy Vulcan failed to show it is entitled

to summary judgment as a matter of law, we reverse the January 18, 2022

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judgment granting Legacy Vulcan' s motion for partial summary judgment to

dismiss all claims asserted by Texas Brine under the Amended Operating

Agreement.

LUXOR0

For the reasons set forth in this opinion, we reverse the January 18, 2022,

judgment granting Legacy Vulcan, LLC' s motion for partial summary judgment

and dismissing with prejudice Texas Brine Company, LLC' s claims under the

Amended Operating Agreement.

Accordingly, we further vacate the portion of the December 1, 2022

judgment ordering Legacy Vulcan, LLC to reimburse Texas Brine Company in the

amount of $ 11, 896, 554. 80, and remand to the trial court for further proceedings in

accordance with this ruling.

We affirm the remaining judgments of the trial court: the January 18, 2022

judgment dismissing with prejudice Texas Brine Company, LLC' s claims for

double recovery of insured losses and liabilities; the July 19, 2022 judgment

dismissing with prejudice Texas Brine Company, LLC' s claims against Legacy

Vulcan, LLC for alleged costs associated with vendors, Commerce Title &

Abstract Company and Right of Way Services, Inc., to recover closing costs and

appraisal costs associated with Texas Brine Company, LLC' s voluntary acquisition

of properties; the July 19, 2022 judgment dismissing with prejudice Texas Brine

Company, LLC' s claim against Legacy Vulcan, LLC for capitalized interest; the

April 26, 2022 judgment granting Legacy Vulcan, LLC' s motion to strike all

discovery and expert reports related to Texas Brine Company, LLC' s specific lost

opportunity claim regarding the sale of its Baytown and Napoleonville properties;

the May 5, 2022 judgment dismissing with prejudice Texas Brine Company,

LLC' s claim under the Assignment of the Salt Lease; the July 19, 2022 judgment

denying Texas Brine Company, LLC' s motion for partial summary judgment

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regarding Legacy Vulcan, LLC' s liability as an intentional tortfeasor; and the

December 1, 2022 stipulated judgment insofar as the parties determined a total

amount of damages that were to be allocated between the at -fault parties.

All costs of this appeal are assessed equally between the parties: one-half to

the appellant, Texas Brine Company, LLC and one- half to the appellee, Legacy

Vulcan, LLC.

JANUARY 18, 2022 PARTIAL SUMMARY JUDGMENT IN FAVOR OF
LEGACY VULCAN, LLC REVERSED; DECEMBER 1, 2022 JUDGMENT
IN FAVOR OF TEXAS BRINE COMPANY AND AGAINST LEGACY
VULCAN, LLC IN THE AMOUNT OF $ 11, 896, 554.80 VACATED AND
REMANDED; ALL OTHER JUDGMENTS ON APPEAL AFFIRMED.

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