Theodore S. Carmichael, Et Ux. v. the Bass Partnership

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-845 consolidated with 11-669

THEODORE S. CARMICHAEL, ET UX.

VERSUS

THE BASS PARTNERSHIP, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 84,484
HONORABLE JOHN DAMIAN TRAHAN, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Sylvia R. Cooks, John D. Saunders, and Shannon J. Gremillion,
Judges.

REVERSED AND REMANDED; WRIT DENIED.

Mark D. Sikes
Attorney at Law
P. O. Drawer 52606
Lafayette, LA 70505-2606
(337) 232-2606
Counsel for Defendant/Appellee:
Wiilischild Oil & Gas Corp.

Nancy Scott Degan
Baker, Donelson, Bearman
201 St. Charles Ave., #3600
New Orleans, LA 70170
(504) 566-5200
Counsel for Defendant/Appellee:
Samson Resources Co.

Roy Clifton Cheatwood
Baker, Donelson, Bearman
201 St. Charles Ave., #3600
New Orleans, LA 70170
(504) 566-5200
Counsel for Defendant/Appellee:
Samson Resources Co.

James J. Davidson, III
Davidson, Meaux, et al
P. O. Drawer 2908
Lafayette, LA 70502
(337) 237-1660
Counsel for Plaintiffs/Appellees:
Theodore S. Carmichael
Judy Chiasson Carmichael

Michael Gonzales Durand
Onebane Law Firm
P. O. Box 3507
Lafayette, LA 70502-3507
(337) 237-2660
Counsel for Defendant/Appellee:
Nuevo Energy Co.

W. Gerald Gaudet
Voorhies & Labbe
P.O. Box 3527
Lafayette, LA 70502
(337) 232-9700
Counsel for Defendant/Appellee:
Harry H. Cullen, et al.

John Michael Veron
Bice, Palermo & Veron
P. O. Box 2125
Lake Charles, LA 70602-2125
(337) 310-1600
Counsel for Plaintiffs/Appellees:
Theodore S. Carmichael
Judy Chiasson Carmichael

Guy Earl Wall
Wall, Bullington & Cook, LLC
540 Elmwood Park Blvd
Harahan, LA 70123
(504) 736-0347
Counsel for Defendant/Appellee:
Bass Brothers Enterprises, Inc.
BEPCO, L.P.

Virgil Russell Purvis, Jr.
Attorney at Law
P.O. Box 298
Jonesville, LA 71343
(318) 339-8526
Counsel for Plaintiffs/Appellees:
Theodore S. Carmichael
Judy Chiasson Carmichael

Gerald Francis Slattery, Jr.
Schully, Roberts, Slattery
1100 Poydras St., Ste 1800
New Orleans, LA 70163
(504) 585-7800
Counsel for Defendant/Appellee:
Continental Land & Fur Company

Alonzo P. Wilson
Bice, Palermo & Veron
P. O. Box 2125
Lake Charles, LA 70602
(337) 310-1600
Counsel for Plaintiffs/Appellees:
Theodore S. Carmichael
Judy Chiasson Carmichael

Phillip A. Wittmann
Stone, Pigman, Walther
546 Carondelet St.
New Orleans, LA 70130
(504) 581-3200
Counsel for Defendant/Appellant:
The Bass Partnership
BOPCO, L.P.

Paul Edward Bullington
Wall & Bullington
540 Elmwood Park Blvd.
New Orleans, LA 70123
(504) 736-0347
Counsel for Defendant/Appellee:
Bass Brothers Enterprises, Inc.
BEPCO, L.P.

George Arceneaux, III
Liskow & Lewis
P. O. Box 52008
Lafayette, LA 70505
(337) 232-7424
Counsel for Defendants/Appellees:
Black Hawk Oil Company
1987-IV STEA Limited Partnership
1987--II STEA Limited Partnership

Daria B Diaz
Stone, Pigman, Walther
546 Carondelet St.
New Orleans, LA 70130
(504) 581-3200
Counsel for Defendant/Appellant:
The Bass Partnership
BOPCO, L.P.

David Lyman Browne
Attorney at Law
650 Poydras St., Suite 2150
New Orleans, LA 70130
(504) 648-0171
Counsel for Defendant/Appellee:
Torch Energy Services, Inc.

Mary McCrory Hamilton
Voorhies & Labbe
P. O. Box 3527
Lafayette, LA 70502
(337) 232-9700
Counsel for Defendant/Appellee:
Harry H. Cullen, et al.

Karen Daniel Ancelet
Onebane Law Firm, APC
P. O. Box 3507
Lafayette, LA 70502-3507
(337) 237-2660
Counsel for Defendant/Appellee:
Nuevo Energy Co.

J. Bradley Duhe
Ottinger, Hebert, LLC
P. O. Drawer 52606
Lafayette, LA 70505-2606
(337) 232-2606
Counsel for Defendant/Appellee:
Wiilischild Oil & Gas Corp.

Jamie D. Rhymes
Liskow & Lewis
P. O. Box 52008
Lafayette, LA 70505-2008
(318) 232-7424
Counsel for Defendants/Appellees:
1987-IV STEA Limited Partnership
1987--II STEA Limited Partnership
Black Hawk Oil Company

Jonathan Robert Cook
Wall & Bullington
540 Elmwood Park Blvd
New Orleans, LA 70123
(504) 736-0347
Counsel for Defendant/Appellee:
Bass Brothers Enterprises, Inc.
BEPCO, L.P.

David Stephen Landry
Schully, Roberts, Slattery
1100 Poydras St., #1800
New Orleans, LA 70163
(504) 585-7800
Counsel for Defendant/Appellee:
Continental Land & Fur Company

Christopher Joseph Piasecki
Davidson, Meaux, etc.
P. O. Dr. 2908
Lafayette, LA 70502-2908
(337) 237-1660
Counsel for Plaintiffs/Appellees:
Judy Chiasson Carmichael
Theodore S. Carmichael

Adam Bennett Zuckerman
Baker Donelson Bearman
201 St. Charles Ave., Ste 3600
New Orleans, LA 70170
(504) 566-5200
Counsel for Defendant/Appellee:
Samson Resources Co.

Hoai T. Hoang
Voorhies & Labbe
P. O. Box 3527
Lafayette, LA 70502
(337) 232-9700
Counsel for Defendant/Appellee:
Harry H. Cullen, et al.

Ryan M. Seidemann
Attorney General's Office
P. O. Box 94005
Baton Rouge, LA 70804-9005
(225) 326-6085
Counsel for Defendant/Appellee:
State of Louisiana, AttorneyGeneral's Office

Penny L. Malbrew
Liskow & Lewis
P. O. Box 52008
Lafayette, LA 70505-2008
(337) 232-7424
Counsel for Defendants/Appellees:
Black Hawk Oil Company
1987--II STEA Limited Partnership
1987-IV STEA Limited Partnership

Colleen Carr Jarrott
Schully Roberts Slattery
1100 Poydras, Suite 1800
New Orleans, LA 70163
(504) 585-7800
Counsel for Defendant/Appellee:
Continental Land & Fur Company

Nicholas J. Wehlen
Stone, Pigman, Walthier, et al
546 Carondelet St.
New Orleans, LA 70130
(504) 581-3200
Counsel for Defendant/Appellant:
BOPCO, L.P.
The Bass Partnership

Jackie M. McCreary
Stone, Pigman, Walther
546 Carondelet St.
New Orleans, LA 70130
(504) 581-3200
Counsel for Defendant/Appellant:
BOPCO, L.P.
The Bass Partnership

Megan K. Terrell
AAG, Civil Division
P. O. Box 94005
Baton Rouge, LA 70804
(225) 326-6085
Counsel for Defendant/Appellee:
State of Louisiana, AttorneyGeneral's Office

GREMILLION, Judge.

This appeal involves complex oil and gas litigation associated with the

remediation of a well site. This matter is consolidated with 11-669, a supervisory

writ filed on behalf of Harry H. Cullen. The trial court granted summary judgment

dismissing defendant-appellants, The Bass Partnership and BOPCO, LP’s, third-

party demand for defense and indemnity against Harry H. Cullen. The consolidated

writ involves the trial court’s denial of Cullen’s summary judgment filed against

Bass for reimbursement for all costs incurred as a result of having to defend the

third-party demand. The issues presented in the main appeal and the supervisory

writ involve the same contract (the Letter Agreement). For the following reasons,

we reverse the summary judgment in favor of Cullen in the main demand and deny

Cullen’s supervisory writ.

FACTUAL AND PROCDURAL BACKGROUND

In 2006, the plaintiffs, Theodore and Judy Carmichael, sued The Bass

Partnership and BOPCO, LP (collectively Bass), among numerous others, claiming

they breached a 1984 mineral lease and contaminated their property, known as the

Hebert No.1 Well. Bass undertook restoration of the property to regulatory

standards, and the plaintiffs’ claims were settled. Before the settlement, Bass filed

a third-party demand against Cullen to enforce a defense and indemnity obligation

it alleges was incorporated in the February 10, 2000 assignment agreement in

which the mineral lease and some property was assigned from Cullen to Bass.

Bass claims it is entitled to be reimbursed for its costs in defending the suit

against plaintiffs and for the funds it paid in the settlement because Cullen was the

lessee and owned an interest in the lease during the time the contamination

occurred.

Following a hearing on Cullen’s motion for summary judgment, the trial

court found in his favor noting that Cullen’s indemnity obligation was limited to

ownership or title obligations whereas Bass’s obligation extended to location

restoration. The trial court found that “had the parties intended that [Cullen] be

responsible for location restoration or obligations arising out of operations on the

property, they could have included that language in the contract.” Thus, Bass’s

third-party demand against Cullen was dismissed. Bass now appeals and assigns

as error:

1. The trial court erred in misinterpreting the assignment in
granting Cullen’s motion for summary judgment.

2. The trial court erred in limiting Cullen’s indemnity obligation to
title problems.

3. The trial court erred in failing to distinguish between location
restoration and damages.

4. The trial court erred in ruling that liability could only be
imposed by “operation” of the property.

5. Alternatively, the trial court erred by granting summary
judgment because the assignment was ambiguous and the trial
court decided disputed issues of material fact.

In January 2011, Cullen filed a motion for summary judgment on his cross-

claim filed against Bass and sought reimbursement for all costs, including court

costs and attorney fees, incurred as a result of having to defend the third-party

demand filed by Bass. Bass filed numerous memoranda opposing Cullen’s motion

for summary judgment. Following an April 2011 hearing, the trial court denied

Cullen’s motion for summary judgment. It rendered written reasons encompassing

the written reasons it set forth in a minute entry which stated that, “Generally,

indemnity agreements do not cover and do not encompass indemnity for the cost of

enforcing the indemnity agreement, and this particular agreement does not

specifically say that it would cover costs and attorneys’ fees for enforcing the

indemnity agreement.” Cullen, in his supervisory writ to this court, assigns as

error:

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1. The trial court’s erroneous application of the incorrect principle
of law to his claim against Bass.

2. The trial court erred in failing to employ the rules of contract
interpretation to the letter agreement between himself and Bass.

3. The trial court erred in failing to consider unique equitable
principles present in this case.

In light of our ruling below reversing summary judgment, we deny the

writ. As a result of our reversal of summary judgment in favor of Cullen, Cullen is

no longer dismissed as a party to the suit since there is no final judgment. Thus,

there is no danger of irreparable injury to Cullen that would warrant granting his

supervisory writ in the consolidated matter (11-669). See La.Civ. Code art. 2201;

Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878

(La.1981). Cullen can appeal the trial court’s ruling regarding its findings

pertaining to the Letter Agreement once the matter has been tried.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins,

98-2822 (La. 7/7/99), 739 So.2d 191. Thus, the appellate court asks the same

questions the trial court asks to determine whether summary judgment is

appropriate. Id. This inquiry seeks to determine whether any genuine issues of

material fact exist and whether the movant is entitled to judgment as a matter of

law. La.Code Civ.P. art. 966 (B) and (C). This means that judgment should be

rendered in favor of the movant if the pleadings, depositions, answers to

interrogatories, admission on file, and affidavits show a lack of factual support for

an essential element of the opposing party's claim. Id. If the opposing party

cannot produce any evidence to suggest that he will be able to meet his evidentiary

burden at trial, no genuine issues of material fact exist. Id.

Material facts are those that determine the outcome of the legal dispute.

Soileau v. D & J Tires, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ

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denied, 97-2737 (La. 1/16/98), 706 So.2d 979. In deciding whether certain facts

are material to an action, we look to the applicable substantive law. Id. Finally,

summary judgment procedure is favored and designed to secure the just, speedy,

and inexpensive determination of every action. La.Code Civ.P. art. 966 (A)(2).

DISCUSSION

In 2003, the Carmichaels acquired a tract of land in Acadia Parish consisting

of approximately 368 acres. The Carmichaels acquired a 2/3’s ownership interest

in the minerals on and beneath the land. In their petition they complain that the

land was damaged by the various defendants prior to their acquisition of it. In

1984, the previous owners (the Heberts) entered into a mineral lease with Cullen.

In April 1985, Cullen executed an “Assignment of Interests and Oil, Gas, and

Mineral Leases” assigning a portion of his interest in the mineral lease, including

the Hebert No. 1 Well, to The Stone Petroleum Corporation (not a party in this

appeal) and Bass Partnership. Over the 1980s and 1990s many assignments were

made to various parties. In March 2000, Continental Land and Fur Company

assigned a portion of its mineral interest to Bass partnership and in February 2010,

Cullen assigned his mineral interest to Bass. At the time the Carmichaels filed suit,

Bass Enterprises Production Company and/or BEPCO, LP were listed operators of

the Hebert No. 1 Well.1

The Carmichaels alleged that the land surface and the ground “was

contaminated, polluted, and impregnated with oils, grease, naturally occurring

radioactive materials (NORMS), and other hazardous and dangerous chemicals,

equipment, pipes, tanks, and related appurtances used and/or generated during the

oil and gas exploration and production activities” that required remediation and

restoration of the land. The Carmichaels further claimed contamination of the

water and nuisance and trespass to their property. In addition to claims for breach
1
We note that the Carmichaels did not sue Cullen. The claims against Cullen arise solely from Bass’ third-party
demand against Cullen seeking defense and indemnity.
4

of contract, the Carmichaels asserted a claim for restoration pursuant to the mineral

code, for exemplary damages, for damages for trespass, and for attorneys fees.

Various motions were filed over the years by multiple parties including multiple

cross-claims for defense and indemnity against Bass and claims by Bass against

various entities that it was owed indemnity.

In July 2010 Bass filed a “Motion for leave to file petition for declaratory

judgment and third party demand and incorporated memorandum” against Cullen,

urging that the Carmichaels claims fell within Cullen’s obligations to Bass as set

forth in the Letter Agreement and Assignment and Bill of Sale. A later

supplemental and amended petition filed by Bass in August 2010 asserted claims

against Cullen for indemnity, contribution, and reimbursement for any and all

amounts it was required to pay.

In September 2010, Cullen filed an answer and asserted a cross-claim

against Bass asserting his right to indemnity pursuant to the terms of the Letter

Agreement. Other parties filed motions for summary judgment against Bass based

on identical Letter Agreements they entered into with Bass. Cullen filed a motion

for summary judgment against Bass in October 2010 based on the terms in the

Letter Agreement. Similarly, in October 2010, Bass filed a motion for summary

judgment against Cullen based on the terms in the Letter Agreement. Following a

November 2010 hearing, the trial court granted summary judgment in favor of

Cullen.2

CONTRACT INTERPRETATION

A panel of this court recently summarized the pertinent law regarding

contract interpretation in CLK Co., L.L.C. v. CXY Energy, Inc., 07–834, pp. 8–10
2
The trial court also granted summary judgment in favor of three other third-party defendants based on Letter
Agreements using the same language as the one Bass entered into with Cullen. Although the other parties are not a
party to the appeal, one of the third-party defendants, Continental Land and Fur, submitted a letter on its behalf on
October 7, 2011, urging that, although they were not requesting consolidation of the cases, we consider the issues in
the cases together. The letter notes that counsel conferred with Cullen, who did not oppose joint consideration, but
that Bass did oppose joint consideration. We are sympathetic to this request. Joint consideration seems like the
judicially efficient means to address what would become identical issues on appeal. Nevertheless, the only parties to
this appeal are Cullen and Bass and we cannot consider Continental’s claim for joint consideration.
5

(La.App. 3 Cir. 12/19/07), 972 So.2d 1280, 1286–87, writs denied, 08–0140, 08–

0207 (La.3/14/05), 977 So.2d 932, 937 (citations omitted):

Whether a contract is ambiguous is a question of law.
Appellate review of a question of law simply requires the appellate
court to determine whether the trial court's conclusion was correct.

The goal of contract interpretation is to determine “the
common intent of the parties.” La.Civ.Code art. 2045. The intent of
the parties to a contract must be determined in accordance with
“the plain, ordinary, and popular sense of the language used in the
agreement and by giving consideration on a practical basis to the
instrument in its entirety.” When the words of a contract are clear,
explicit, and lead to no absurd consequences, the contract must be
interpreted within its four corners and cannot be explained or
contradicted by parol evidence. However, when a word in a
contract is not clear, testimony or other evidence may be
considered to determine the parties' intent and interpret the
contract. . . . [This] rule applies to contacts involving immovable
property.

“The words of a contract must be given their generally
prevailing meaning,” and “[w]ords of art and technical terms must
be given their technical meaning when the contract involves a
technical matter.” La.Civ.Code art. 2047. Additionally, “[w]ords
susceptible of different meanings must be interpreted as having the
meaning that conforms to the object of the contract.” La.Civ.Code
art. 2048. Pursuant to La.Civ.Code art. 2049, a “provision
susceptible of different meanings must be interpreted with a
meaning that renders it effective and not with one that renders it
ineffective.”

The January 18, 2000 letter agreement (Letter Agreement), which was

drafted by Bass, states in part:

Gentlemen:

This is to verify our conversation of this date whereby Bass
Enterprises Production Co. (hereinafter referred to as “Bass”) and
Harry H. Cullen (hereinafter referred to as “Cullen”) have agreed
that Cullen will forfeit its interest in the Hebert no. 1 Well and
associated leasehold interest, as well as further leasehold interests
obtained by Bass and Davis Petroleum Corp.in the above prospect,
according to the following terms and conditions:

1. For Ten Dollars ($10.00 and other good and valuable
consideration, the receipt of which is hereby acknowledged,
Cullen agrees to convey to Bass all of its right, title and
interests in and to the Hebert No. 1 Well, the MT 3 RF SUA
and the other properties described in numerical paragraph five

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(5) below and/or in Exhibit “A” hereto (hereinafter the
“properties”). As to the Properties, Bass hereby agres [sic] to
assume Cullen’s share of plugging liability and Cullen’s
share of the responsibility for location restoration. As the
term is used in this agreement, location restoration shall
include but not be limited to removal and disposal of any
and all materials or substances including naturally
occurring radioactive material (“NORM”) used in or
produced in connection with operations relating to the
Properties.

2. The Effective Date of transfer will be 7:00 a.m. local time on
February 1, 2000.

....

7. Within fifteen (15) days after the execution hereof, Cullen will
pay to Bass $22,171.00 and will deliver to Bass a mutually
acceptable assignment and bill of sale of the Properties.
Payment of this sum shall relieve Cullen of any further
payment obligations relating to costs and expenses incurred
with regard to remediation on the Properties.

8. Bass shall assume all responsibility for the Properties as of the
Effective Date, and agrees and convenants to protect, defend,
release, indemnify and save Cullen harmless from and against
any and all costs (including court costs and attorney fees),
claims, demands, judgments, causes of action and other
liability of whatsoever kind arising out of or incident to the
ownership, operation, plugging, abandoning and location
restoration of the Properties from and after the Effective Date.
In addition, Bass shall protect, defend, release, indemnify and
save Cullen harmless from and against any an [sic] all costs
(including court costs and attorneys fees), claims demands,
judgements [sic], causes of action and other liability of
whatsoever kind relating to the demands for release of leases
referred to in paragraph four (4) above and to any additional
such demands pertaining to the Properties and directed to the
parties hereto.

9. Except as to the demands for release of leases referred to in
paragraph four (4) above, Cullen agrees and covenants to
protect, defend, release, indemnify and save Bass harmless
from and against any and all costs (including court costs
and attorney fees), claims demands, judgments cause of
action and liability of whatsoever kind arising out of or
incident to the ownership of Cullen of the Properties prior to
the Effective date.

We find that the trial court’s analysis is flawed. The trial court stated in its

written reasons for judgment:

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They point out that Bass’ indemnity obligations specifically
apply to “location restoration” as well as to claims “arising out of
or incident to the ownership, operation, plugging, abandoning” of
the property, whereas defendants’ in cross-claim [Cullen and
others] indemnity obligations are only for claims arising out of or
incident to the ownership prior to the effective date. Had the
parties intended that the defendants in cross-claim be responsible
for location restoration or obligations arising out of the operation
of the property, they could have included that language in the
contract.

The Court finds that under the Letter Agreements, Bass is
obligated to defend and indemnify the defendants in cross-claim
for the claims in this lawsuit.

The trial court interpreted the lack of the words “operation, plugging, abandoning,

and location restoration” following the word “ownership” in paragraph nine to

mean that Cullen did not agree to indemnify Bass for those costs. However,

pursuant to the Letter Agreement and Bill of Sale, Cullen was never in a position

to conduct operations, plugging, or abandoning (since the lease was sold), or

location restoration.

A plain reading of the remainder of the paragraph, that Cullen agrees to

protect, defend, release, indemnify and save Bass harmless from and against “other

liability of whatsoever kind” that arises “prior to the effective date” of the

assignment can be construed as encompassing any claims arising out of any cause

during the time period before the effective date of the agreement. We do not find

that use of the term “ownership,” without more, limits Cullen’s responsibility to

title problems. It cannot be discerned from the agreement; thus, granting summary

judgment in Cullen’s favor was inappropriate based solely on the Letter Agreement.

We find the Letter Agreement is ambiguous, and that genuine issues of material

fact exist regarding the parties intent.

When the intent of the parties is not clear from the four corners of the

document, we look to parol evidence. In Sloane v. Davis, 619 So.2d 585, 590

(La.App. 3 Cir.), writ denied, 629 So.2d 355 (La.1993), we stated:

8

When it is impossible to gather the intention of the parties
from a written contract, the court should permit introduction of
extrinsic evidence. As a general rule parol evidence is admissible,
as between the parties, to explain ambiguous terms of descriptive
meaning found in contracts. The intention of the parties must be
ascertained; and when that intention cannot be determined without
an explanation of the situation and nature of the thing conveyed in
the contract, courts are free to examine the parties’ prior use of
such terms or dealings on the same subject matter, the meaning
generally afforded such terms when both are used in the same
instrument, and other special facts peculiar to the oil and gas
industry which may be helpful in arriving at the parties’ true intent
in so working the agreement.

In CLK Company, L.L.C., v. CXY Energy, Inc., 07-834 (La.App. 3 Cir.

12/19/07), 972 So.2d 1280, we quoted Blanchard v. Pan-OK Prod. Co., Inc.,

32,764 (La.App. 2 Cir. 4/5/00), 755 So.2d 376, 381, writ denied, 00-1297

(La.6/23/00), 765 So.2d 1043 (citations omitted) in which the appellate court stated;

A contract is considered ambiguous on the issue of intent
when it lacks a provision bearing on that issue or when the
language used in the contract is uncertain or is fairly susceptible to
more than one interpretation. These rules are applicable even to
contracts involving rights in immovable property, such as mineral
rights.

In considering the parol evidence in this record to determine the true intent

of the parties in the form of affidavits and deposition testimony, we still find that a

genuine issue of material fact exists. The deposition testimony submitted in

support of the motions for summary judgment does little to assist us in determining

the true intent of the parties. The record before us establishes that the complex

issues surrounding the well, the parties’ knowledge of what they were purchasing

and/or selling and for what price/consideration are factually disputed. While the

record is replete with contested facts related to some issues, it is devoid of facts

relating to others. For example, there was no testimony about what damage

occurred to the property in relation to the effective date of the Letter Agreement.

There was no testimony regarding what the parties agreed to regarding

9

indemnification. Given these genuine issues of material fact, the matter should not

have been resolved summarily.

Accordingly, the trial court’s grant of summary judgment in favor of Harry

H. Cullen is reversed and we remand this case for further proceedings consistent

with this opinion. Cullen’s supervisory writ is denied as there is no danger of

irreparable harm.

REVERSED AND REMANDED; WRIT DENIED.

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