Marcus Broussard, Jr. v. Martin Operating Partnership

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1559

MARCUS BROUSSARD, JR., ET AL.

VERSUS

MARTIN OPERATING PARTNERSHIP, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 83,406
HONORABLE ARTHUR J. PLANCHARD, DISTRICT JUDGE AD HOC

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JIMMIE C. PETERS
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

AFFIRMED.

Gladstone N. Jones, III
Eberhard D. Garrison
H.S. Bartlett, III
Jones, Swanson, Huddell & Garrison, LLC
601 Poydras Street, Suite 2655
New Orleans, LA 70130
(504) 523-2500
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Marcus Broussard, Jr., et al.

Stuart H. Smith
Michael G. Stag
Sean S. Cassidy
Smith Stag, LLC
365 Canal Street, Suite 2850
New Orleans, LA 70130
(504) 593-9600
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Marcus Broussard, Jr., et al.

Warren A. Perrin
Perrin, Landry, deLaunay, Dartez & Ouellet
251 La Rue France
Lafayette, LA 70505
(337) 233-5832
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Marcus Broussard, Jr., et al.

Al J. Robert, Jr.
643 Magazine Street, Suite 402
New Orleans, LA 70130
(504) 309-4852
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Marcus Broussard, Jr., et al.

Tobin J. Eason
Weiss & Eason, LLP
Post Office Box 8597
Mandeville, LA 70470
(985) 626-5358
COUNSEL FOR DEFENDANT/APPELLANT:
M-I, LLC d/b/a M-I SWACO

Robert T. Stewart
301 Congress Avenue, Suite 2000
Austin, TX 78701
(512) 495-6426
COUNSEL FOR DEFENDANT/APPELLANT:
M-I, LLC d/b/a M-I SWACO

Glen G. Goodier
Jones, Walker
201 St. Charles Avenue, 48th Floor
New Orleans, LA 70170-5100
(504) 582-8000
COUNSEL FOR DEFENDANTS/APPELLEES:
Continental Insurance Company
Fidelity & Casualty Company

Daniel C. Hughes
126 Heymann Boulavrd
Lafayette, LA 70503
(337) 237-6566
COUNSEL FOR DEFENDANT/APPELLEE:
Vista Resources, LLC

Gary P. Kraus
Onebane Law Firm
Post Office Box 3507
Lafayette, LA 70502-3507
(337) 237-2660
COUNSEL FOR DEFENDANT/APPELLEE:
Vista Resources, LLC

Kenneth B. Givens
Post Office Box 8597
Mandeville, LA 70471-2008
(985) 626-5358
COUNSEL FOR DEFENDANT/APPELLANT:
M-I, LLC d/b/a M-I SWACO

John Y. Pearce, III
Andrew T. Lilly
1100 Poydras Street, 33rd Floor
New Orleans, LA 70163
(504) 585-3200
COUNSEL FOR DEFENDANTS/APPELLEES:
Goldking Operating Company
Dune Energy, Inc.

Thomas M. McNamara
Johnson Gray McNamara, LLC
Post Office Box 51165
Lafayette, LA 70505
(337) 412-6003
COUNSEL FOR DEFENDANT/APPELLEE:
Atlantic Richfield Company

Robert T. Jorden, Jr.
Loulan J. Pitre, Jr.
Gordon Arata McCollam Duplantis & Eagan LLC
400 E. Kaliste Saloom, Suite 4200
Lafayette, LA 70508-8517
(337) 237-0132
COUNSEL FOR DEFENDANTS/APPELLEES:
Atlantic Richfield Company
Cody Energy, LLC

George Arceneaux, III
Liskow & Lewis
Post Office Box 52008
Lafayette, LA 70505
(337) 232-7424
COUNSEL FOR DEFENDANTS/APPELLEES:
Atlantic Richfield Company
Sinclair Oil Corporation

Bryan D. Scofield
Scofield & Rivera
Post Office Box 4422
Lafayette, LA 70502
(337) 235-5353
COUNSEL FOR DEFENDANT/APPELLEE:
Smith International

Kevin W. Trahan
Ottinger Hebert LLC
Post Office Drawer 52606
Lafayette, LA 70505-2606
(337) 232-2606
COUNSEL FOR DEFENDANTS/APPELLEES:
Chevron USA, Inc.
Saltex Exploration

Erin F. Parkinson
McGlinchey Stafford
601 Poydras Street, 12th Floor
New Orleans, LA 70130
(504) 586-1200
COUNSEL FOR DEFENDANTS/APPELLEES:
National Union Fire Insurance Company
American Home Assurance Company
American International Insurance Company

John E. W. Baay, II
Gieger, Laborde & Laperouse, LLC
701 Poydras Street, Suite 4800
New Orleans, LA 70139-4800
(504) 561-0400
COUNSEL FOR DEFENDANT/APPELLEE:
Pacific Insurance Company

Andrew P. Sellers Jr.
Post Office Box 15948
Baton Rouge, LA 70895
(225) 928-1951
COUNSEL FOR DEFENDANT/APPELLEE:
Brammer Engineering, Inc.

PETERS, J.

The original petition filed in this litigation lists the plaintiffs as follows:

Marcus Broussard, Jr.; Flo Broussard; R. Brady Broussard; Whitestone, Inc., a

Louisiana corporation; Joseph Vallee; Suzanne Vallee; and Vallee Land Company,

LLC, a Louisiana limited liability company. In that original petition, the plaintiffs

consolidated damage claims involving eight different tracts of immovable property

(hereinafter often referred to as “tract,” “property,” or “land”) and thirteen different

defendants. The matter before us involves two of the plaintiffs, Whitestone, Inc.

(Whitestone), which is owned by the Broussard plaintiffs, and Vallee Land

Company, LLC (Vallee Land), which is owned by the Vallee plaintiffs; one of the

eight tracts; and one of the thirteen defendants, M-I, LLC (which does business as

both M-I Drilling Fluids LLC and as M-I SWACO and will be collectively referred

to herein as “M-I”). The tract at issue in this litigation is located in Vermilion

Parish, has been the subject of successive written commercial-lease contracts

(hereinafter “lease” or “leases”) dating back to 1955, and the two plaintiffs are its

current record owners.

The plaintiffs brought suit against M-I as the current lessee to have the lease

dissolved and to recover damages sustained to the property. A jury rejected all of

the plaintiffs‟ claims against M-I, and after the trial court rejected their motions for

a Judgment Notwithstanding the Verdict (JNOV) and, in the alternative, a new trial,

they perfected this appeal primarily asserting in their seven assignments of error

that the trial court erred in denying their post-trial motions. M-I also appealed,

asserting one assignment of error. Additionally, M-I filed in this court a motion to

dismiss the appeal. For the following reasons, we reject the motion to dismiss the

appeal, but affirm the trial court‟s judgment in all respects.

DISCUSSION OF THE RECORD

The property at issue in this litigation is approximately 3.7 acres located in

Intracoastal City, Louisiana, on the Vermilion River near its intersection with the

Intracoastal Waterway. Marcus A. Broussard, Sr., one of the original plaintiffs‟

fathers, acquired the land at a Sheriff‟s Sale in 1945, and a subsequent transaction

gave R. J. Vallee, the predecessor of the other plaintiffs, ownership of a percentage

of the property. The record contains no evidence of the use of the property

between 1945 and August of 1955. When the first lease was executed in 1955, the

owners of the 3.7 acres were Marcus A. Broussard, Sr. (undivided three-fourths

interest) and R. J. Vallee (undivided one-fourth interest).

Between August 1, 1955, and July 31, 1975, Marcus A. Broussard, Sr. and R.

J. Vallee leased most of the 3.7 acres1 to Mud Supply Co., Inc. (“Mud Supply”).

This original lease can best be described as basic. It provided for a ten-year term

beginning August 1, 1955, with an option to renew for an additional ten years, but

provided no information concerning the use Mud Supply was to make of the land

or any conditions applicable to Mud Supply‟s obligations at the end of the lease

with regards to the return of the property to the lessors. This lease terminated on

July 31, 1975, without any dispute arising between the lessors and lessee

concerning the lessee‟s full compliance with its terms.

In August of 1975, Marcus A. Broussard, Sr. and R. J. Vallee entered into a

new lease (wherein the additional 90.5 feet of river frontage was added, thus

expanding the area to include the full 3.7 acres at issue in this litigation) with

Dresser Industries, Inc. d/b/a Oilfield Products Division of Dresser Industries, Inc.

1
This lease describes the leased premises as having a 181 foot frontage on the Vermilion
River. The subsequent leases at issue in this litigation reflect that an additional 90.5 feet of river
frontage was added to the property description.

2

(“Dresser”). This lease identified Dresser as the successor to Mud Supply and

purported to cancel, supersede, and replace not only the original August 1955 lease,

but also a second lease executed between the original parties on January 12, 1959.2

The Dresser lease provided for a primary term of seven years beginning on August

1, 1975, with options to renew for two additional periods of seven years each. It

also provided more detail than the 1955 lease in that it stated the following: “The

premises may be used by Lessee for the purposes of Material Storage and

Distribution and purposes incidental thereto and for any other lawful purposes not

injurious to the reversion.” This lease also addressed, for the first time, the lessee‟s

reversion obligation at the end of the lease. The language concerning this

obligation reads in pertinent part as follows:

[A]t the expiration of the terms [Dresser] shall remove its goods and
effects and peacefully yield up to Lessor said premises in as good
order and condition as when originally delivered to it in 1955 and
1959 [respectively], excepting, however ordinary wear and tear and
damage or loss caused by casualty, war, insurrection, public disorder,
act of any governmental authority, fire, the elements, and any persons
other than Lessee and those under its control.

The lease also contained a new provision addressing the ownership of any

additions made to the property by the lessee during the term of the lease: “All

improvements, alterations, and buildings (excluding bulkheads) which have been

or will be placed or constructed upon the premises by Lessee shall be and remain

property of Lessee. At [the] expiration of the term, Lessee, at its option, may

abandon the same to Lessor or remove them from the premises.”

By an act of donation inter vivos dated May 6, 1983, R. J. Vallee and his

wife donated their interest in the 3.7 acres and other properties to their children,

Joseph G. and Suzanne Vallee. Thus, at this point, the 3.7 acres was owned by

2
The record does not contain a copy of the January 12 lease.

3

Marcus A. Broussard, Sr. (undivided three-fourths interest), Joseph G. Vallee

(undivided one-eighth interest), and Suzanne Vallee (undivided one-eighth

interest).

On December 22, 1995, Marcus Broussard, Sr., then a widower, donated his

interest in 12.71 acres, which included the 3.7 acres at issue in this litigation, to his

children: Marcus Broussard, Jr., Florence (“Flo”) Broussard, and R. Brady

Broussard. The ownership at this point in time was as follows: Marcus Broussard,

Jr. (undivided one-fourth interest); Florence (“Flo”) Broussard (undivided one-

fourth interest); Brady Broussard (undivided one-fourth interest); Joseph G. Vallee

(undivided one-eighth interest); and Suzanne Vallee (undivided one-eighth

interest).

Dresser exercised the available options to renew and remained the named

lessee until July 31, 1996. As with the Mud Supply lease, the termination of this

lease gave rise to no dispute between the lessors and lessee concerning the lessee‟s

performance under the lease or compliance with its terms.

The next lease took effect on August 1, 1996, but was actually executed on

May 31, 1996. In this lease, Marcus A. Broussard, Jr., Brady Broussard, Flo

Broussard Guidry, Mrs. R. J. Vallee, Joseph Vallee, and Suzanne Vallee leased the

3.7 acres to M-I. The lease provided for a primary term of five years beginning

August 1, 1996, with no option to renew. While there is no direct evidence in the

record to establish the exact relationship between Dresser and M-I, it is clear that a

structural relationship existed because prior to the execution of the May 31, 1996

lease, M-I had taken over the operational responsibilities of the business activities

transpiring on the 3.7 acres.

The M-I lease incorporated some provisions of the Dresser lease almost

verbatim, but incorporated new provisions and added detail to others. With regard
4

to the obligation to maintain the premises, the M-I lease added the provision that

“LESSEE will be responsible to maintain the said premises, to enhance its

appearance, and to avoid any buildup of trash, etc., which might be deemed a

public nuisance or against any government regulation or law.” The lease carried

forward the same language found in the Dresser lease concerning ownership of

improvements, alterations, and buildings, but with the added language that “[a]ny

buildings or improvements not removed within two months of the termination of

this lease shall become the property of LESSORS.” Additionally, this lease

contained the specific provision that “LESSEE shall not make any additions or

alterations to the premises without written permission of the LESSORS.”

With regard to the use of the leased property, the lease did not feature the

“for any other lawful purposes not injurious to the reversion” language found in the

Dresser lease and instead simply provided that “[i]t is agreed and understood that

LESSEE shall use the lease premises only for the purposes of Material Storage and

Distribution and purposes incidental thereto.”

Finally, with regard to M-I‟s reversion obligations, the lease provided the

following:

[A]t the expiration of the terms shall remove its goods and effects and
peacefully yield up to the LESSORS said premises in as good order
and condition as when originally delivered to it in 1955 excepting,
however, ordinary wear and tear and damage or loss caused by
casualty, war, insurrection, public disorder, act of any governmental
authority, fire, [or] the elements.

Before this litigation began, more ownership transfers occurred between the

property owners. By a credit deed dated December 22, 1997, or before the primary

term of the M-I lease expired, Marcus A. Broussard, Jr., Flo Broussard, and Brady

Broussard transferred their respective interests in the 3.7 acres to Whitestone. On

that same day, the vendors in the credit deed executed a separate document

5

assigning all of their interest in the M-I lease to Whitestone. In October of 2004,

Joseph G. Vallee and Suzanne Vallee transferred their interests in the 3.7 acres and

other properties to Vallee Land. The transfer document was described as an act of

exchange. Thus, at this point, the full ownership of the 3.7 acres belonged to

Whitestone and Vallee Land in their respective undivided interests.

On two separate occasions before the Vallees transferred their interest to

Vallee Land, Joseph G. Vallee, Suzanne Vallee Meaux, and Whitestone executed

documents described as lease abstracts wherein they granted M-I two separate five-

year extensions of the primary term of the May 31, 1996 lease. The first was

executed in June of 2001 and extended the lease through July 31, 2006. The

second was executed in November of 2003 and extended the lease through July 31,

2016.

This litigation began on May 17, 2005, when all of the combined plaintiffs

filed a twelve-page petition seeking to recover damages from thirteen named

defendants, including M-I. The petition claims that the individual defendants were

liable for property damage on eight separate tracts of land varying in size from

3.62 acres to 703.893 acres. Thus, the petition attempts to assert thirteen

individual claims involving eight different tracts of immovable property in a single

pleading.

The 3.7-acre tract on the Vermilion River was one of the eight, and the

allegations of damage to that tract were limited to the acts or omissions of M-I.

While it is clear from the aforementioned acts of transfer that Whitestone and

Vallee Land were the sole owners of the 3.7-acre tract when the original petition

was filed, the pleadings‟ structure make it difficult to determine the actual parties

at interest in the thirteen separate claims.

6

With regard to M-I‟s liability for damages to the plaintiffs, the original

petition and subsequent amending petitions assert that M-I and its predecessor

corporations had conducted operations on the 3.7-acre tract since 1975, and during

that time had “knowingly, willfully, wantonly, and negligently” caused the

property “to become contaminated [by] barium, production and drilling wastes,

and other hazardous, toxic and carcinogenic chemicals.” This contamination, the

petition asserted, was caused by the negligent and improper discharge of “drilling

fluid and other chemicals associated with the oil and gas industry onto the

property.” Furthermore, the plaintiffs charged that M-I had intentionally disposed,

dumped, buried, and hid solid hazardous waste on the property. These actions,

according to the plaintiffs, constituted negligent and intentional wrongdoing. The

plaintiffs also asserted that M-I used the property “for purposes other than those

intended by the lease agreement,” and that it violated the terms of the lease in

numerous other ways. For all of M-I‟s acts and omissions, the plaintiffs sought

dissolution of the lease and a judgment for damages associated with the breach of

the lease as well as damages in tort.

As would be expected, given the nature of the litigation and the number of

parties involved, the pretrial record of these proceedings is voluminous. Hearings

where all of the defendants argued the same pretrial motions occurred, and the trial

court faced the arduous task of separating the legal arguments from the individual

facts of the separate claims. Additionally, the pretrial record resulted in conflicting

judgments arising over time. For example, on January 29, 2007, a hearing was

held wherein the trial court addressed multiple preliminary motions filed by the

various defendants, including an exception of prematurity. The transcript of the

January 29, 2007 hearing is not a part of the appeal record, but the minutes and

May 14, 2007 judgment arising from that hearing reflect that the trial court
7

rendered the following ruling on all of the prematurity exceptions that were filed,

including one filed by M-I:

IT IS HEREBY ORDERED that the Dilatory Exception of
Prematurity is SUSTAINED IN PART and OVERRULED IN PART.
The Exception of Prematurity is overruled as to all claims of
Plaintiff[s] except those claims involving the defendant[] lessee‟s
obligations to restore lands on which operations are ongoing. The
claim for restoration is hereby dismissed.

However, on October 28, 2010, this issue was revisited and the trial court reversed

its ruling on the prematurity issue. The November 12, 2010 judgment arising from

the October 28, 2010 hearing reads, in pertinent part, as follows:

IT IS FURTHER HEREBY ORDERED that this Honorable
Court recognizes its prior ruling as to the restoration claim in granting
the prior M-I Exceptions of Prematurity for ongoing leases but M-I‟s
Motion in Limine to limit plaintiffs from seeking damages relating to
its claims for restoration, et al. is DENIED.

The final act of transfer evidencing ownership of the property by the

plaintiffs occurred on December 8, 2010, or five days before the trial on the merits

began. On that day, by separate acts of donation, the Broussard family members

and the Vallee family members transferred to Whitestone and Vallee Land,

respectively, the following described property:

All rights, claims, actions, causes of action, and demands, including
without limitation claims for damages, that Donors have or may have
against any and all of the defendants in the suit entitled “Marcus
Broussard, Jr. et al. vs. Martin Operating Partnership, et al., pending
in the 15th Judicial District Court, Vermilion Parish, State of Louisiana,
Docket No. 83406, Division “C.”

The trial testimony established that the purpose of these documents was to clarify

ownership of all claims.3

3
Despite full ownership of the 3.7 acres being vested in Whitestone and Vallee Land, the
plaintiffs‟ pleadings still designate the parties at interest as the “Broussard” plaintiffs and the
plaintiffs‟ brief to this court lists all the parties in the original suit as appellants.

8

On December 13, 2010, trial by jury began. Twelve trial days, twenty-one

witnesses, and 148 exhibits4 later, the matter was submitted to the jury with a jury

verdict form containing six interrogatories. Slightly over three hours after the

matter was submitted, the jury returned its verdict rejecting all of the plaintiffs‟

claims. The verdict form and instructions provided to the jury reads, and was

completed, as follows:

TO THE MEMBERS OF THE JURY:

This Jury Verdict Form must be filled out in accordance with
the directions given by the court. When nine jurors agree on the
answers to the questions that must be answered, your foreperson
should sign and date the Form and then notify the court.

INTERROGATORIES ON BREACH OF CONTRACT CLAIMS

1. Do you find by a preponderance of the evidence that the Defendant
is in breach of the “Commercial Lease” and caused damage to the
Plaintiffs‟ property?

Yes No 

INTERROGATORIES ON TORT CLAIMS

2. Do you find by a preponderance of the evidence that the Defendant
was negligent with respect to the described property in the
“Commercial Lease”?

Yes No _____

(If you answered “yes” to this question, go to #3; if “no,” then
proceed to #4)

3. Do you find by a preponderance of the evidence that the
Defendant‟s negligence was a cause of any damage to the Plaintiffs‟
property with respect to the described property in the “Commercial
Lease”?

Yes No 

4
The number of exhibits listed do not include those which were referred to but not
offered into evidence, nor those which were rejected as evidence and proffered.

9

INTERROGATORIES ON COMPENSATORY DAMAGES

4. Please state the amount of money necessary to fairly
compensate the Plaintiffs and remediate the described property in the
“Commercial Lease”:

$____________________

INTERROGATORIES ON PUNITIVE (EXEMPLARY) DAMAGES

Answer Question #5 only if you have answered “yes” to #2 and #3:

5. Do you find that between September 4, 1984[,] and April 16, 1996,
the Defendant acted with wanton or reckless disregard for the public
safety in the storage, handling, or transportation of hazardous or toxic
substances on the property described in the “Commercial Lease”?

Yes No _____

(If you answered “yes” go to question #6.)

6. State the total amount of punitive damages you find that the
Defendant should pay the Plaintiffs for damage to their property:

$____________________

The jury foreperson signed and dated this verdict form and returned it in open

court on January 6, 2011. Neither the plaintiffs nor M-I initially objected to, or

even noted, the fact that the jury failed to answer the second interrogatory.

Based on this verdict, the plaintiffs filed a motion for JNOV and,

alternatively, for a new trial. The trial court subsequently denied both motions.

The trial court rendered a final judgment on March 16, 2011,5 and the plaintiffs

timely perfected this appeal.

In their appeal, the plaintiffs6 raised seven assignments of error:

5
The March 16 judgment was designated an amended judgment. An initial “Final
Judgment” had been rendered on February 10, 2011. The only difference between the initial
judgment and the amended judgment is that the amended judgment states that the jury verdict
form is made a part of the judgment.
6
We again point out that while the plaintiffs‟ pleadings continue to refer to the plaintiffs
in such a way as to suggest that a right of recovery remains in the individuals who previously

10

1. The district court erred in denying the Broussards‟ motion for JNOV
on their tort claim, and for entering a judgment on the jury‟s verdict
“that Defendant‟s negligence was not a legal cause of any damage to
the Plaintiffs‟ property,” where M-I‟s counsel and witnesses
repeatedly conceded causation and where M-I did not put on a defense
on causation.

2. Alternatively, if this Court were to interpret the jury‟s verdict as not
resulting in a finding of negligence to the jury‟s failure to completely
fill out the verdict form, then the district court erred in denying the
Broussards‟ motion for new trial under Louisiana Supreme Court‟s
intervening decision in Wegener v. Lafayette Ins. Co., 60 So.3d 1220
(La.2011).

3. The district court also erred in failing to properly instruct the jury on
the applicability of strict liability and negligence per se, particularly
for the 1996 contamination damages on the property.

4. The district court erred in denying the Broussards‟ motion for JNOV
on their contract claim, and for entering judgment on the jury‟s verdict
that the Defendant “did not breach the „Commercial Lease‟ and cause
damage to the Plaintiffs‟ property,” where there is overwhelming
evidence on the record that M-I breached the lease through multiple
statutory and regulatory violations and through conducting
manufacturing operations on the property.

5. The district court erred in denying the Broussards‟ motion for new
trial on the basis of M-I‟s significant discovery abuse.

6. The district court erred in refusing to allow discovery for or admit
evidence of M-I‟s other bad acts for purposes of the res gestae factors
under Louisiana Code of Evidence art. 404(B)(1) (motive, opportunity,
intent, preparation, plan, knowledge, identity, and absence of mistake
or accident).

7. The district court erred in its judgment to “dismiss[] with prejudice all
causes of action asserted in the plaintiffs‟ original and all
supplemental Petitions,” where the district court‟s dismissal includes a
dismissal of the Broussards‟ claim for statutory damages under La.R.S.
§ [30]:2276(G)(3), as to which the district court failed to conduct a
hearing, and as to which claim the Broussards have presented
overwhelming evidence of M-I‟s obligation to pay all costs incurred
by the Broussards in developing and implementing an approved clean-
up plan for the property.

owned the property, all of the evidence points to the fact that the ownership of all rights in this
litigation rests with Whitestone, Inc. and Vallee Land Company, LLC.

11

In response to the plaintiffs‟ appeal, M-I filed a partial motion to dismiss the

appeal. This motion was referred to the merits and will be decided herein. M-I has

also appealed from the trial court judgment, alleging one assignment of error

couched in the following language:

M-I L.L.C. d/b/a M-I SWACO, and its predecessors, have been
operating on the property in question for over fifty years pursuant to a
series of leases. The current lease, which expires in 2016, was written
by the lessor and specifically provided that the lessee has a restoration
obligation upon expiration. This is a claim for restoration damages.

M-I contends that the lease is the contract between the parties
and plaintiffs‟ claims in tort and contract are governed by the contract.
Since the contract specifies a restoration obligation upon expiration,
plaintiffs cannot seek damages in tort or contract for restoration until
the end of the lease, i.e., the case is premature. Therefore, the trial
court should have dismissed the case or disallowed evidence of
restoration damages as suit was filed based upon restoration damages
and should have been dismissed. Further, several interlocutory
Judgments during discovery ruled that for ongoing leases (as
originally there were multiple parties) restoration damage claims were
dismissed.

OPINION

Scope of Review

Most of the plaintiffs‟ assignments of error on appeal address the trial

court‟s failure to grant their JNOV and/or motion for new trial. In Trunk v.

Medical Center of Louisiana at New Orleans, 04-181, pp. 4-5, (La. 10/19/04), 885

So.2d 534, 537, the supreme court again explained the standard under which a

JNOV should be decided at the trial level:

The use of JNOV is provided for by La. C.C.P. art. 1811. A
JNOV may be granted on the issue of liability or on the issue of
damages or on both issues. La. C.C.P. art. 1811(F). Article 1811
does not specify the grounds upon which the district court may grant a
JNOV; however this court has set forth the criteria to be used in
determining when a JNOV is proper as follows:

[A] JNOV is warranted when the facts and inferences
point so strongly and overwhelmingly in favor of one
party that the trial court believes that reasonable persons
could not arrive at a contrary verdict. The motion should
12

be granted only when the evidence points so strongly in
favor of the moving party that reasonable persons could
not reach different conclusions, not merely when there is
a preponderance of evidence for the mover. The motion
should be denied if there is evidence opposed to the
motion which is of such quality and weight that
reasonable and fair-minded persons in the exercise of
impartial judgment might reach different conclusions. In
making this determination, the trial court should not
evaluate the credibility of the witnesses, and all
reasonable inferences or factual questions should be
resolved in favor of the non-moving party.

Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La.10/30/00),
772 So.2d 94, 99 (internal citations omitted). See also VaSalle v. Wal-
Mart Stores, Inc., 01-0462, p. 11 (La.11/28/01), 801 So.2d 331, 338-
39. The rigorous standard of JNOV is based upon the principle that
“when there is a jury, the jury is the trier of fact.” Joseph, 00-0628 at
p. 5, 772 So.2d at 99 (quoting Scott Hospital Serv. Dist. No. 1, 496
So.2d 270, 273 (La.1986)).

Additionally, “[i]n reviewing a JNOV, an appellate court must first determine

whether the district court erred in granting the JNOV by using the above-

mentioned criteria in the same way as the district judge in deciding whether to

grant the motion.” Id. However, a judgment denying a motion for JNOV will only

be reversed if the denial was manifestly erroneous. Peterson v. Gibraltar Sav. and

Loan, 98-1601, 98-1608 (La. 5/18/99), 733 So.2d 1198. Therefore, we evaluate

the trial court‟s denial of the JNOV under the manifest error, clearly wrong

standard of review. As noted in Peterson, 733 So.2d at 1203:

A jury‟s finding of fact may not be reversed absent manifest
error or unless clearly wrong. Stobart v. State of Louisiana, Through
Department of Transportation and Development, 92-1328
(La.4/12/93), 617 So.2d 880. The reviewing court must do more than
just simply review the record for some evidence which supports or
controverts the trial court‟s findings; it must instead review the record
in its entirety to determine whether the trial court‟s finding was
clearly wrong or manifestly erroneous. Stobart at 882. The issue to
be resolved by a reviewing court is not whether the trier of fact was
right or wrong, but whether the factfinder‟s conclusion was a
reasonable one[.] Id. The reviewing court must always keep in mind
that “if the trial court or jury‟s findings are reasonable in light of the
record reviewed in its entirety, the court of appeal may not reverse,
even if convinced that had it been sitting as the trier of fact, it would
13

have weighed the evidence differently.” Stobart at 882-83, citing
Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty
Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

With regard to the motion for new trial, the supreme court, in Joseph v.

Broussard Rice Mill, Inc., 00-628, pp. 14-15 (La. 10/30/00), 772 So.2d 94, 104

(footnotes omitted) (alteration in original), stated the following:

As provided in LA.CODE CIV. PROC. art. 1972, a new trial shall be
granted, upon contradictory motion, where (1) the verdict or judgment
is contrary to the law and evidence; (2) important evidence is obtained
after trial; or (3) the jury was either bribed or behaved improperly.
Moreover, pursuant to LA.CODE CIV. PROC. art. 1973, a new trial
may be granted if there is good ground therefor except as otherwise
provided by law.

In Lamb v. Lamb, 430 So.2d 51 (La.1983), we set forth the
standard for granting a new trial pursuant to LA.CODE CIV. PROC. art.
1973. There we stated:

A proper application of this article necessitates an
examination of the facts and circumstances of the
individual case. When the trial judge is convinced by his
examination of the facts that the judgment would result in
a miscarriage of justice, a new trial should be ordered. . . .
We have recognized that the [trial] court has much
discretion regarding this determination. However, this
court will not hesitate to set aside the ruling of the trial
judge in a case of manifest abuse.

Lamb, 430 So.2d at 53.

In a motion for new trial under either LA.CODE CIV. PROC. arts.
1972 or 1973, the trial court may evaluate the evidence without
favoring either party; it may draw its own inferences and conclusions;
and evaluate witness credibility to determine whether the jury had
erred in giving too much credence to an unreliable witness. Smith v.
American Indem. Ins. Co., 598 So.2d 486 (La.App. 2 Cir.), writ
denied, 600 So.2d 685 (La.1992). The applicable standard of review
in such matter is whether the trial court abused its discretion. Anthony
v. Davis Lumber, 629 So.2d 329 (La.1993).

Summary of the Trial Evidence

The record establishes that regardless of whether the lessee was Mud Supply,

Dresser, or M-I, the use of the 3.7 acres included the operation of a drilling-mud

processing plant to service the Louisiana inland water and offshore oil and gas
14

industry. Drilling mud is an integral part of the oil and gas drilling process. It is

either water or oil based and often contains additives such as viscosifiers,

emulsifiers, and lubricants, as well as substances such as barite to give it weight.

The purpose of drilling mud is to maintain the integrity of the borehole of the well

by building a mud cake on the outside of the hole to prevent it from collapsing. It

also functions as a weight fluid to prevent the formation fluids from rising to the

surface. Because drilling mud is constantly being circulated down the drill pipe, it

picks up cuttings and fluids generated from the drilling process, as well as

naturally occurring substances found in the subsurface.

Since 1955, the chemicals and supplies (hereinafter sometimes referred to

collectively as the “product”) necessary for the lessee‟s operations have been

delivered in sacks and stored on the property until needed. The product used by

M-I contains barium sulfate, chromium, traces of lead, and zinc bromide, with

barium sulfate being the primary ingredient. Additionally, during the period from

1955 through the 1970s, some drilling mud suppliers added arsenic to the final

mixture as an inhibitor. The evidence in the record does not address Mud Supply‟s

use or nonuse of arsenic.

When a customer placed an order for drilling mud, the lessee would mix the

drilling mud to the customer‟s specifications on the premises and then transport the

finished product to the drilling site. It was not uncommon for the stored product to

exceed the warehouse storage capacity and, consequently, the sacks would be

stacked in the open on wooden pallets. Sometimes, but not always, the sacks

would be encased in plastic shrink wrap. However, because the sacks were not

always protected from the elements and because the handling of the sacks was

subject to human error, accidents occurred and torn sacks would regularly cause

the product to be spread across the surface of the 3.7 acres. Additionally, during
15

the mixing process, spills would occur. Most, but not all, of these spills were

minor.

Mud Supply and Dresser Lease History

Storing and mixing the product, and then distributing the final mixture of

drilling mud appears to have been the only business activity on the 3.7 acres during

the time when Mud Supply was the lessee. However, when Dresser/M-I7 became

the lessee, it expanded business activity to include storing and recycling used

drilling mud and completion fluids. Both of these activities entailed different spill

risks from the basic drilling mud facility operated by Mud Supply.

The recyclable drilling mud was shipped from an inland water or offshore

drilling rig to the 3.7-acre tract and stored in tanks. It would then be treated to

remove the numerous impurities and chemicals picked up downhole on the drilling

rig, and then remixed after being purged and resold for use.8 The impurities and

chemicals included oilfield brine extracted in the drilling process, the various

chemicals found in the drilling fluids, and the cuttings and oil contaminants

encountered in the drilling process. Evidence introduced at trial established that

one could expect to find a number of heavy metals in the oilfield brine, including

lead, arsenic, barium, chromium, cadmium, copper, silver, and zinc. Most of these

were removed at the drilling site through the recycling process.

In 1994, Dresser/M-I completed a new oil and gas related facility on the 3.7

acres which was then used for receiving, storing, and recycling used completion

fluids from inland waterway and offshore drilling rigs. Completion fluids are clear,

7
We use this designation because, while Dresser is the named lessee, early in the primary
term, M-I was operating all of the business interests on the 3.7-acre tract.
8
It is not clear from the record when this business activity began, but tanks associated
with the activity appeared on an aerial photograph taken of the 3.7 acres in 1981.

16

saturated salt solutions which are pumped downhole to complete a well. These

completion fluids are exposed to the same contaminating substances as the

recyclable drilling mud, and the purpose of the recycling process is to remove the

contaminants and resell the purged completion fluids to the drilling rig. In addition

to the other substances and chemicals to which it might be exposed, the completion

fluids themselves are largely zinc bromide, a pollutant which can suffocate marine

life.

The introduction of the recycling operations for drilling mud and completion

fluids to the 3.7 acres exposed the property to another byproduct of the drilling

process referred to as naturally occurring radioactive materials or “NORM.” These

radioactive materials often exist downhole and can become mixed with the drilling

mud and completion fluids used during the drilling process. If they do become

mixed, the recycling operation must address their presence and remove them from

the recycled product. NORM can also be found in the sand/scale mineral buildup

accumulating in drilling pipes and oilfield equipment. When NORM appears in

the sand/scale mineral-buildup, it is referred to as technologically enhanced,

naturally occurring radioactive material or “T-NORM,” and is more radioactively

concentrated than basic NORM. The amount of NORM produced by a drilling

operation varies depending on a number of factors, including the nature of the

geological formation. The oil and gas formations found in the Gulf of Mexico off

the coast of Louisiana generally have high levels of NORM.

The dangerous nature of NORM and T-NORM was recognized by the

Louisiana Department of Environmental Quality (DEQ) in the 1980‟s, and DEQ

promulgated rules and regulations addressing the problem. However, both before

and after DEQ took these steps relating to NORM and T-NORM, Dresser/M-I did

not consider radioactive waste to be a problem which needed to be addressed
17

because its policy was to not accept any NORM contaminated material from

offshore in its recycling operations. T-NORM did not have to be addressed,

Dresser/M-I reasoned, because its policy prohibited offshore equipment from being

stored on the 3.7-acre tract. Furthermore, Dresser/M-I took the position that when

the DEQ rules and regulations were promulgated, they only applied to the drilling

process directly and, therefore, did not apply to the ongoing operations on the 3.7

acres. With this policy in mind, neither Dresser nor M-I ever obtained the

appropriate permit from DEQ to handle NORM or T-NORM.

Neither Mud Supply nor Dresser kept adequate records concerning spills

occurring on the property from August of 1995 through July 31, 1996. In fact,

there exists no evidence of any spill, large or small, during the time Mud Supply

leased the property. The remaining evidence establishes the existence of only two

significant spills occurring on the property before M-I‟s lease took effect on July

31, 1996: a ten-barrel spill of oil-based drilling fluids on April 22, 1988; and a

6,000 barrel spill of nonhazardous oilfield waste (“NOW”) in the summer of 1994.

There is no evidence concerning how the first spill was addressed, but significant

evidence exists relating to the second.

On September 26, 1994, M-I (not Dresser, although Dresser remained the

lessee at this time) applied for a permit from DEQ to dispose of 6,000 barrels of

NOW.9 According to Richard Bourque, M-I‟s site manager at the time, the waste

consisted of oil, mud, and cuttings that had escaped from one of the mixing tanks.

He participated in removing the spilled product as well as approximately six to

eight feet of soil at the spill site. Mr. Bourque testified that during the excavation

9
Initially, M-I applied for a permit to dispose of 100 barrels of NOW waste on August 17,
1994. It amended this amount to 1500 barrels on September 20, 1994, and further amended it to
6000 barrels on September 26, 1994.

18

process, he wore protective gear but was not aware of any testing that may have

been performed on the removed soil.

Blufford Joseph Cart, III, who held the position of M-I‟s Quality Health

Safety Environmental Manager at the time of trial but had not participated in the

evaluation or cleanup of the 1994 spill, testified that it was his understanding that

the six to eight feet of soil was not removed because it was a part of the NOW

resulting from the spill, but because it was contaminated. He understood that the

spill occurred at the construction site of the completion fluids plant and when some

of the soil was excavated, it was found to be contaminated.

To further complicate matters, Art Leuterman, M-I‟s manager of its

Environmental Control Group since 1983, testified that he was aware of the 1994

spill as a result of reviewing the DEQ permit request. According to his

understanding of the request, the spilled material was removed pursuant to the

permit, but the underlying soil was not excavated as a result of contamination.

Instead, it was excavated to construct the foundation for the completion fluid plant.

He acknowledged, however, that the removed soil contained arsenic, chromium,

and zinc levels which exceeded state established standards.

The 1994 spill also revealed the flawed nature of the Dresser/M-I policy

concerning NORM because, despite the stated policy, NORM had already found its

way onto the 3.7 acres. According to Marc Adair Churan, M-I‟s Analytical

Services Group Manager situated in Houston, Texas, his lab performed

radioactivity testing on three samples provided to him in August of 1994, in which

measurable amounts of radioactive material were detected. NORM apparently

found its way onto the property because, instead of testing the material it received,

M-I relied on the assertions of the inland waterway and offshore facilities returning

the used product and its understanding of the historical data associated with a
19

particular formation to determine in advance whether the product would be NORM

free and, thus, accepted on the property.

With regard to improvements on the leased premises, neither the Mud

Supply lease nor the Dresser lease placed any restrictions on the construction needs

of the lessees‟ operations. The testimony and various photographs introduced into

evidence establish a significant history of construction and renovation projects

between August of 1955 and July 31, 1996. When Dresser‟s lease expired on July

31, 1996, the structures and facilities on the 3.7 acres included, but were not

limited to, the completion fluids plant, living quarters for the employees, office

space, an expanded warehouse, a crane, bulkheads, and bulk barite tanks.

Additionally, a significant portion of the property was cemented over.

Pre-suit M-I Lease History

When Dresser‟s lease expired on July 31, 1996, the use of the property had

already been expanded to an operation that not only stored, mixed, and supplied

drilling mud and completion fluids to inland water and offshore oil and gas drilling

rigs, but also recycled both drilling mud and completion fluids. Also, it is evident

that the property already contained significant contaminants derived from the

continuing activity begun on August 1, 1955. No testing was performed by anyone

between the end of the Dresser lease and the beginning of the M-I lease to establish

a baseline for comparison with the contamination situation existing when the

litigation began. Additionally, although the Dresser lease contained a clause that

required Dresser to deliver the property to the lessors in its pre-1955 condition, this

requirement was ignored by the lessors, Dresser, and the new lessee.

Dresser also apparently abandoned the improvements, alterations, and

buildings on the 3.7 acres to the lessors. As previously stated, although Dresser‟s

lease provided that improvements, alterations, and buildings which it constructed
20

on the property would remain Dresser‟s property, it also provided that if Dresser

did not remove them at the end of the lease, they would become the lessor‟s

property. Thus, under the specific terms of the Dresser lease, the lessors became

the owners of the improvements, alterations, and buildings constructed during the

Dresser lease.

Also, as previously stated, when M-I became the lessee effective August 1,

1996, the language concerning improvements, alterations, and buildings found in

Dresser‟s lease was modified only to state that M-I had two months from the end

of the lease to remove any improvements, alterations, or buildings it added to the

property or they too would become the property of the lessor. The M-I lease did

not address the ownership of the improvements, alterations, and buildings

constructed during the Dresser lease. The record establishes that while there seems

to have been movement of existing structures during the M-I lease, there appears to

have been little or no new construction.

When M-I became the named lessee, there appeared to be an immediate

positive change in corporate policy concerning record keeping and pollution

control. Bryan Benoit became M-I‟s Environmental Coordinator in mid-1996, and

when he assumed his duties, his responsibilities included bringing M-I sites into

compliance with the various federal and state entities having jurisdiction over its

operations. At trial, he suggested that the primary problems at the 3.7-acre site

included the lack of training of the facility personnel concerning the handling of

waste; permit requirements not being properly met; the lack of a storm water

permit; the absence of a spill prevention control and countermeasures (SPCC) plan;

and the failure to have a United States Coast Guard Facility Operational Manual on

site.

21

Mr. Benoit went to work on these deficiencies, and within sixty days of

assuming his new position, he had satisfied the Coast Guard with regard to the

operational-manual issue and, before he left M-I‟s employment in 2002, he had

written an SPCC plan for the site. Additionally, he had worked to update and/or

obtain the necessary solid and hazardous waste permits and to implement waste-

handling training for the employees. Although he applied for numerous permits

from both the state and federal agencies, Mr. Benoit testified that M-I was still

waiting for the State of Louisiana to act on its water permit application when he

left M-I‟s employment in 2002.

According to Mr. Cart, in December of 2004, or over one and one-half years

before M-I became the named lessee, the company implemented a Waste

Management Plan specifically for the 3.7-acre tract which identified potential

streams of waste to include: (1) empty sacks, plastics, and paper; (2) empty drums

previously containing non-hazardous product; (3) small amounts of liquid from the

mixing pit; (4) small spills from the diesel mud plant; (5) solids and water from the

oil and water separator; and (6) dust and dry chemical residue in the environment

of the warehouse. Included in an appendix to the plan was a list of chemical

compositions found on the 3.7 acres while formulating the plan. These included

alkalinity (“Ph”), total petroleum hydrocarbons (“TPH”), benzene, arsenic, barium,

cadmium, chrome, copper, lead, mercury, molybdenum, nickel, selenium, silver,

and zinc.

As one might expect on such a labor intensive site, accidents and spills

continued to occur despite the implementation of the new company plans and

policies. A major spill occurred in August of 2000, when, after a large rain event,

a tank valve was left open and approximately 200 gallons of zinc bromide spilled

into a retaining area surrounding the tank and mixed with the rainwater. When the
22

rainwater was drained from the retaining area pursuant to the appropriate permit,

the zinc bromide flowed out, as well. Mr. Benoit testified that the surface was

cleaned immediately and he took samples to determine the effect the spill had on

the soil. When tested, these samples were found to contain barium, chromium,

sodium bichromate, and zinc in amounts that exceeded DEQ standards. When he

sought authority for further remediation action, he was informed that the surface

should be cleaned immediately, but that the more significant subsurface

contamination would be addressed at the end of the lease.

Another significant spill occurred on December 30, 2004, when a vessel

being loaded with drilling mud tilted from the load and approximately forty barrels

of drilling mud spilled into the Vermilion River. However, according to Billy

Alston, M-I‟s Asset Manager and former site manager, absorbent booms and pads

were deployed within fifteen to twenty minutes of the spill.

With regard to NORM, in 1997 Mr. Benoit recorded readings establishing its

presence in two twelve-foot long flow lines running from a tank containing

recyclable drilling mud. On another occasion, Mr. Benoit observed workers

washing a piece of oilfield equipment containing three to four inches of

accumulated sand. The water used to wash the equipment flowed into a ditch and

ultimately drained into the Vermilion River. Not only had the equipment and sand

not been tested for T-NORM, but the lessee had no discharge permits for purposes

of draining the water into the river. Mr. Benoit‟s opinion on the subject of NORM

testing differed from his employer. He was of the opinion that even though M-I

did not accept NORM-contaminated material, it should test the recyclable

materials it received to make sure its reliance on the drilling rig testing was well

founded.

23

Post-suit Activity

When they filed suit, the plaintiffs had only a suspicion that the property was

contaminated. In fact, it was not until August of 2008, when William Kimbrell, a

Baton Rouge, Louisiana petroleum engineer and geological consultant retained by

the plaintiffs, completed an extensive evaluation of the 3.7 acres that revealed the

extent of the contamination. With regard to why the suit was filed in May of 2005,

instead of waiting until the lease expired on July 31, 2016, Marcus Broussard, Jr.

testified that the suit was brought to evict M-I so that the lessors could clean up the

site. He explained that he was eighty-two years old and did not wish to leave the

cleanup problem to his children and grandchildren.

Mr. Broussard testified that the lessors recognized that M-I had made some

attempts to clean up the site, but they were convinced that the efforts were only to

meet DEQ standards and not to return the property to the 1955 pre-lease condition.

He also asserted that M-I failed to maintain the property‟s cosmetic appearance as

required by the lease; that the property was being used for business activity not

authorized by the lease; that M-I had made alterations to the property without first

obtaining written permission as required by the lease; and that M-I failed to follow

the applicable regulations associated with its commercial operation as evidenced

by its flawed NORM policy. While the plaintiffs wanted the lease dissolved, they

did not want M-I to be responsible for the restoration of the property to 1955 pre-

lease standards. Instead, they wanted M-I to pay them the cost of restoration and

they would assume the responsibility for that activity themselves. Mr. Broussard

testified that at the time of trial, the plaintiffs had sustained no monetary loss.

To begin his analysis, Mr. Kimbrell performed a background evaluation of

the 3.7 acres by studying historical aerial photographs and related documents to

develop a sense of the property‟s transition from 1955 to the time of his
24

investigation. On August 22, 2008, he performed a physical walkover of the

property and then took soil samples from over sixty locations at depths varying

from five to eighteen feet. Additionally, he took twenty-two samples from areas as

far as two miles from the 3.7-acre site to establish a “background” benchmark.10

He then compared the current level of a particular element found in the 3.7-acre

tract to the background amount one would have expected to find prior to August 1,

1955.

In his analysis, Mr. Kimbrell made the assumption that any chemical present

in quantities exceeding double the background concentration would require

removal. According to Mr. Kimbrell, all of the chemicals compositions one might

expect to find in the primary and recycling activities were found in at least two

times background and at significant depths in the soil. Of particular significance to

Mr. Kimbrell were the excess concentrations of arsenic and barium found

throughout the property. During his walkover of the property, Mr. Kimbrell

detected evidence of radioactivity, but found it elevated to NORM in only one area.

In Mr. Kimbrell‟s opinion, M-I had merely cleaned the surface when it

addressed spills on the property because contaminants were found at significant

depths. To return the property to 1955 pre-lease standards would require the

excavation of the contaminated soil and its removal to a commercial disposal

facility. He testified that this process would cost approximately $14,500,000.00.

Dr. William Sawyer, a Sanibel, Florida toxicologist and forensic medicine

expert, evaluated Mr. Kimbrell‟s findings and concluded that five of the thirty

confirmed human carcinogens were present on the 3.7 acres. He identified these

10
As explained by the many witnesses who used the term “background,” it is the level of
a particular element that one would expect to find naturally occurring in the environment being
tested.

25

five as arsenic, benzene, nickel, chromium VI, and radium and found that all were

present in concentrations which exceeded twice the background as identified by Mr.

Kimbrell. It was his opinion that the arsenic concentration was excessive and

above the range considered safe. He also agreed with Mr. Kimbrell that the

concentration levels of barium were exceedingly high and constituted a health risk.

He agreed that the site warranted cleanup and opined that Mr. Kimbrell‟s cleanup

restoration plan adequately addressed the health risks he noted in his evaluation.

The plaintiffs retained Stanley Waligora, Jr., an Albuquerque, New Mexico

health physicist with expertise in radiation, to characterize the radiological

conditions on the 3.7 acres and to recommend solutions for any problems he might

find. Based on the material provided to him, Mr. Waligora concluded that NORM

was handled at the site and that radium in the area where NORM was found was

elevated beyond background. Given his conclusion that NORM was being

processed on the 3.7 acres, he was of the opinion that Mr. Kimbrell‟s cleanup plan

should be implemented to prevent further buildup, but that the goal of the plan

would be hard to reach.

Dr. Paul H. Templet, the former Secretary of DEQ and a retired professor of

Chemical Physics at Louisiana State University in Baton Rouge, Louisiana,

testified concerning the DEQ regulations pertaining to NORM and his opinion

regarding the extent of NORM contamination on the 3.7-acre tract. Dr. Templet

additionally was the Secretary of DEQ in 1988, when the rules and regulations

pertaining to NORM were promulgated.

After reviewing the data compiled by Mr. Kimbrell, Dr. Templet concluded

that the site was contaminated with high levels of barium, chromium, lead, zinc,

arsenic, TPH, and radium. Additionally, based on Mr. Kimbrell‟s radiation data,

he concluded that despite its policy to the contrary, M-I regularly handled NORM-
26

contaminated material and equipment on the premises. In fact, according to Dr.

Templet, the DEQ NORM regulations were intended to apply to facilities such as

M-I‟s and not just to drilling locations. Thus, M-I‟s policy concerning NORM

testing was a continuing violation of DEQ regulations. The policy as implemented

by M-I created, according to Dr. Templet, a foregone conclusion that NORM

contamination would affect the site.

At some point after this litigation began, M-I prepared a Risk Evaluation

Corrective Action Plan (RECAP) and submitted it to DEQ for approval. Dr.

Templet described a RECAP plan as a procedure for deciding how to clean a

contaminated site to a remediation point that would allow a company to be released

from future liability. The plan itself addresses the problems present on the given

tract of land, including the nature and extent of the contamination; the proposed

cleanup steps to be taken; and the anticipated result of those efforts. He testified

that M-I‟s plan proposed a cleanup that would meet current industrial standards,

but which would fall far short of the 1955 pre-lease standards. Furthermore, a

RECAP plan does not cover NORM. According to Mr. Kimbrell, a RECAP

cleanup would meet minimum standards, but is designed to avoid interference with

property rights or contractual obligations.

The company representatives and expert witnesses who testified for M-I

basically agreed that the 3.7 acres contained levels of chemical compositions that

exceeded the appropriate limits and also generally agreed that M-I‟s commercial

activity contributed to that contamination. Mr. Leuterman acknowledged that the

arsenic, chromium, and zinc exceeded DEQ standards, but disagreed that M-I

contributed to the radium contamination. He suggested that the radium present

was nothing more than background. Mr. Leuterman stated that M-I had not

performed any remediation work because it was still conducting operations on the
27

property and that the contamination issues would be addressed when the lease

terminated. He could not say if the contamination levels of the individual

substances exceeded twice background levels, but pointed to a September 24, 2010

letter from DEQ where that agency suggested that the residual contaminant

concentrations did not exceed remediation standards for an industrial exposure

scenario. In fact, based on DEQ‟s reaction to the RECAP plan submitted by M-I,

if the plaintiffs would agree, the arsenic, barium, chromium, and lead found on the

property need not be removed.

Byron Trahan is an environmental consulting engineer who was retained by

M-I to prepare the RECAP plan. He explained that RECAP is a method of

developing site-specific standards to determine if a site has soil or groundwater

contamination. It tells a party what contamination must be cleaned up and what

may be left in the ground. In the case of the 3.7 acres at issue in this litigation, he

first initiated a site-history investigation to obtain the background information

necessary to comply with the RECAP requirements. His primary sources of

information were current M-I employees and DEQ‟s electronic document

management system.

By July of 2009, Mr. Trahan was well aware that the site was contaminated

with arsenic, barium, chromium, lead, zinc, and TPH. He also had knowledge of

Mr. Kimbrell‟s findings of radium. Assuming the property was used solely for

industrial purposes, Mr. Trahan prepared his RECAP recommendations to DEQ.

As established by his testimony, the information presented to DEQ was

significantly lacking in detail—much of the known history, and particularly the

spill history, of the 3.7 acres was omitted. Additionally, the RECAP

recommendations contained no information addressing the extent of the vertical

contamination on the property. Mr. Trahan explained the absence of this
28

information by asserting that he had met with a representative of DEQ before

preparing the report and was told that a general plan, rather than a more extensive

and intensive work plan, would be sufficient for RECAP purposes. He suggested

that RECAP has both general screening standards and site-specific screening

standards, and that general standards were initially applicable to the 3.7-acre tract,

but ultimately, site-specific standards were formulated.

Richard Goudeau, a biologist who formerly worked for DEQ, joined M-I

in 2006. Because of his working relationship with DEQ, he assisted Mr. Trahan in

implementing and presenting the RECAP document. He described RECAP as a

guide which did not have to be followed to the letter. If DEQ accepted the RECAP

presentation, M-I would be allowed to risk away any further contamination on the

site, and DEQ would require no further remediation. However, he also

acknowledged that significant historical data concerning prior spills was omitted

from the RECAP document submitted to DEQ.

Although Brian Hunter, M-I‟s vice-president for Quality, Health, Safety, and

Environment, had little personal knowledge of the problems at the 3.7-acre tract,

he testified concerning M-I‟s company policies. He acknowledged that the 3.7

acres was contaminated with a number of substances commonly found in M-I‟s

products or as a byproduct of its activities, but stated that M-I‟s policy is to avoid

all spills big or small, toxic or harmless. Still, he acknowledged that contamination

as a result of accidental discharges will occur in the course of M-I‟s business

operations. With regard to the various DEQ regulations at issue in this litigation,

he reasserted the company position that the regulations were intended to apply only

to oil and gas drilling operations and not to a service company such as M-I. Also,

it is M-I‟s policy to return the land to the owner in the same condition it was

received.
29

Dr. Barbara Beck is from Cambridge, Massachusetts; has a Ph.D. in

molecular biology and microbiology; and testified for M-I as an expert in

toxicology. She explained that a toxicologist evaluates the effects of chemical

compositions on humans, animals, and plants. In doing so, the toxicologist

determines the harmful dose 11 of a particular chemical and compares it to the

concentration of the chemical at the site and the risks resulting from human

exposure. After preforming a risk assessment for the 3.7 acres, she concluded that

there existed no excess risk to humans from the contaminated soil, even if the site

was to be used for residential purposes. Dr. Beck reached this conclusion by

calculating the degree of exposure over a thirty-year period and concluding that the

contamination present was not in sufficient quantities to cause harm to humans.

Dr. Beck compared the contamination quantities present in the 3.7 acres to

Environmental Protection Agency (“EPA”), not DEQ, screening levels and found

that while arsenic, chromium, lead, TPH, and polycyclic aromatic hydrocarbons

(“PAH”) exceeded screening limits, there are no long-term dangers associated with

this level of exposure. She concluded that benzene did not exceed the screening

limits. With regard to radium, she found the overall readings to be at background

levels and not elevated. In doing so, she considered the site as a whole and not

any particular section of the property.

While Dr. Beck acknowledged that arsenic was the risk driver at the site, she

suggested that removing the soil would be of no benefit because any replacement

soil would also contain arsenic. In fact, she found no scientific reason for

excavating any of the soil from the site. The fact that twenty percent of the

11
The point at which exposure to a particular chemical becomes harmful.

30

property was covered by concrete would not cause her to change her mind because

she would expect the same findings under the concrete as in the open areas.

John Tweedel is a radiation safety officer with Tiger Environmental, which

is an environmental cleaning company specializing in production equipment

cleanup, including equipment contaminated with NORM. On September 15, 2009,

Mr. Tweedel cleaned the area where Mr. Kimbrell had found NORM during his

inspection. In completing his DEQ-approved remediation plan, Mr. Tweedel

excavated an area approximately thirty-by-forty feet on the surface and three feet

deep. However, when he reached the three foot level and tested for NORM, he

continued to record readings that were twice the background. In some areas, he

stopped digging at fifty-seven inches below the surface, concluding that he had

removed all radiation.

Pursuant to DEQ instructions, Mr. Tweedel returned to the site on March 30,

2010, and conducted a grid survey over the entire property for NORM. He found

no additional locations where NORM exceeded two times background. However,

he acknowledged that he was not able to test under the concrete slabs on the

property.

Regarding M-I‟s policy concerning NORM, Mr. Tweedel testified that the

standard operating procedure in the oil and gas industry is to have all materials

from offshore screened for NORM before arriving onshore. Whether the material

should be checked a second time once it arrives on shore, according to Mr.

Tweedel, depends on where the material will ultimately be delivered. He

personally believed that M-I had satisfied DEQ‟s NORM requirements.

Dr. John Frazier has a Ph.D. in physics and is a health physicist from

Knoxville, Tennessee, and testified on behalf of M-I concerning the radiation

levels on the 3.7-acre tract. He testified that all soils contain radioactive material,
31

but that in reviewing the material made available to him, including Mr. Kimbrell‟s

work product, he found no indication of levels of radiation above background on

the property that had not already been remediated. Dr. Frazier acknowledged that

the area remediated by Mr. Tweedel contained NORM, but that the excavation of

the area complied with DEQ regulations.

Legal Analysis

The evidentiary record establishes that the 3.7-acre tract of land came to be

owned by the Broussard and Vallee families in 1945. While there exists no

evidence to establish the property‟s use between 1945 and August 1, 1955, the

parties seem to generally agree that Mud Supply acquired possession of a relatively

clean tract of land. From August 1, 1955, through May 17, 2005, when suit was

filed, the property was continuously subjected to the wear and tear associated with

the operation of businesses whose purpose was supplying the needs of the oil and

gas drilling activity in the inland waterways and off the coast of Louisiana. First,

Mud Supply operated a facility which stored, mixed, and supplied drilling rigs with

drilling mud, a chemical composition which, by its very makeup, contains

chemicals and elements not natural to the surrounding landscape. This business

enterprise was both continued and supplemented when Dresser became the lessee

of the property. By the time M-I took over as lessee on August 1, 1996, the

activity had expanded to include facilities to store, recycle, and supply drilling rigs

with recycled drilling mud and completion fluids. The introduction of these new

operations also introduced the property to new possible contaminants. The nature

of all three of these facilities includes the very real risk of accidental spills.

Although one might argue that some of these spills could possibly have resulted in

intentional efforts to cover up their occurrence, there exists no evidence in the

record that any of these spills were intentional.
32

The plaintiffs set forth two basic arguments under which they claim the right

to recover damages. The first is that M-I breached its lease contract such that the

lease should be dissolved and the plaintiffs awarded damages for that breach. The

second is that the contamination of the 3.7 acres occurred through the negligence

of M-I and that the plaintiffs sustained damage as a result of that negligence. M-I,

on the other hand, asserts firstly that the plaintiffs‟ appeal should be dismissed for

failure to appeal the appropriate judgment, and secondly because it is premature.

Assuming this court concludes that these arguments are without merit, M-I asserts

that the trial court judgment should be affirmed. Because they address preliminary

matters, we will first consider M-I‟s motion to dismiss the appeal and its sole

assignment of error.

M-I’s Partial Motion to Dismiss Appeal

M-I argues that because the plaintiffs have only appealed from the February

10, 2011 judgment (as amended by the March 16, 2011 judgment), they have failed

to appeal the trial court judgment denying the motion for JNOV and new trial.

That being the case, and because most of the plaintiffs‟ assignments of error relate

to the denial of the motion for JNOV and new trial, M-I argues that those

assignments addressing the JNOV and new trial rulings should be dismissed. We

find no merit in this assignment of error.

An appeal is taken by order, either oral or written, within the time delay

allowed from a judgment rendered by the trial court. La.Code Civ.P. art. 2121.

Furthermore, Rule 1-3, Uniform Rules—Courts of Appeal, provides:

The scope of review in all cases within the appellate and
supervisory jurisdiction of the Courts of Appeal shall be as provided
by LSA-Const. Art. 5 § 10(B), and as otherwise provided by law. The
Courts of Appeal will review only issues which were submitted to the
trial court and which are contained in specifications or assignments of
error, unless the interest of justice clearly requires otherwise.

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In their motion for appeal, the plaintiffs listed the original and amended

judgments, their motions for JNOV and new trial, and the trial court‟s judgment

denying those motions. They subsequently requested that they be granted an

appeal from the February 10, 2011 judgment, as amended on March 16, 2011.

They did not specifically request an appeal from the April 6, 2011 trial court

judgment denying their motion for JNOV and new trial. However, the failure to

specifically request an appeal of the April 6, 2011 judgment does not, as advocated

by M-I, automatically deny the plaintiffs the right to seek review of that judgment.

Because the issue of the JNOV and new trial were obviously submitted to the trial

court and, also, because the plaintiffs have specified their desire to appeal that

judgment through their assignments of error, those issues are properly raised in the

appeal. M-I‟s partial motion to dismiss is denied.

Premature Suit

In its only assignment of error, M-I argues that the plaintiffs‟ suit is for

restoration damages and, as such, is premature because the lease between the

parties is ongoing and does not terminate until July 31, 2016. We disagree.

The lease term relied on by M-I provides the following:

13. LESSEE shall pay the rent as provided above, and at the
expiration of the terms shall remove its goods and effects and
peacefully yield up to the LESSORS said premises in as good order
and condition as when originally delivered to it in 1955 excepting,
however, ordinary wear and tear and damage or loss caused by
casualty, war, insurrection, public disorder, act of any governmental
authority, fire, [or] the elements.

We disagree with M-I‟s argument that the on-going lease between the parties

renders the plaintiffs‟ claim premature. In Marin v. Exxon Mobil Corp., 09-2368,

09-2371 (La. 10/19/10), 48 So.3d 234, the supreme court disagreed with Exxon‟s

position, as mirrored by M-I, that any restoration obligation raised by a lease does

not become effective until the lease terminates. Specifically, the supreme court
34

found that while certain obligations imposed by law may “only arise at the end of a

lease,” others “continue throughout the term of the lease and a lessor need not wait

until the end of the lease to sue a lessee for damage to his property.” Id. at 256.

We acknowledge that Marin is factually distinguishable from the matter before us

because it involved an attempt to recover damages caused to a part of the property

subject to an oil and gas lease, but which was also used for growing sugar cane,

while the matter before us concerns property that is all being used by the lessee for

its purposes. However, we find this discrepancy to be a distinction without a

difference. In both cases, the plaintiffs attempted to recover damages for

contamination to their property arising from ongoing activity.

M-I also argues that Marin does not apply in this instance because the lease

between the plaintiffs and Exxon in Marin did not contain a restoration obligation,

unlike the defendant‟s lease with the plaintiffs. However, although the original

lease in Marin did not contain a restoration provision, the plaintiffs in that case

executed a novation of the original lease in 1994, and entered into a new agreement

which provided: “LESSEE shall restore the leased premises as near as reasonably

practicable to its present condition and shall be liable for any damage to the surface

of the land by reason of LESSEE‟s use during the term of this Lease.” Id. at 258.

Thus, the 1994 version of the Marin lease did contain a restoration provision.

We find no merit in this assignment of error.

Plaintiffs’ First Assignment of Error

In this assignment of error, the plaintiffs assert that the trial court erred in

rejecting its motion for JNOV addressing their negligence claim. Specifically, the

plaintiffs argue that the jury erred in concluding that M-I‟s negligence was not a

legal cause of the damage to their property because M-I conceded causation

throughout the trial.
35

We evaluate a negligence claim under a duty-risk analysis. This is a five-

step process which requires that a party, asserting the fault of another, establish the

following:

(1) the defendant had a duty to conform his conduct to a specific
standard (the duty element); (2) the defendant‟s conduct failed to
conform to the appropriate standard (the breach element); (3) the
defendant‟s substandard conduct was a cause in fact of the plaintiff‟s
injuries (the cause-in-fact element); (4) the defendant‟s substandard
conduct was a legal cause of the plaintiff‟s injuries (the scope of
liability or scope of protection element); and (5) the actual damages
(the damages element). A negative answer to any of the inquiries of
the duty-risk analysis results in a determination of no liability.

Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La. 3/10/06), 923 So.2d 627,
633 (citations omitted).

In this case, the jury was not presented with a five-step interrogatory to

determine the negligence issues. Instead, Interrogatory Number Two simply asked

whether “the Defendant was negligent with respect to the described property[,]”

and Interrogatory Number Three asked whether “the Defendant‟s negligence was a

cause of any damage to the Plaintiffs‟ property[.]” Thus, the first two elements of

the duty-risk analysis are included in Interrogatory Number Two, and the

remaining three elements are included in Interrogatory Number Three.

With regard to the duty or duties M-I owed the lessors, the trial court

instructed the jury that M-I‟s actions were to be considered with regard to “that of

a reasonably prudent person under the circumstances[.]” Additionally, the trial

court instructed the jury that pursuant to La.Civ.Code art. 2317, with some

modifications, “[w]e are responsible, not only for the damage occasioned by our

own act, but for that which is caused by the act of persons for whom we are

answerable, or of the things which we have in our custody.” Additionally, the trial

court instructed the jury that La.Civ.Code art. 2317.1 provides in pertinent part:

The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he
36

knew or, in the exercise of reasonable care, should have known of the
ruin, vice, or defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care.

The jury did not record its answer to Interrogatory Number Two, but

recorded its answer to Interrogatory Number Three in the negative. However,

because the instruction to the jury was to the effect that it should not consider

Interrogatory Number Three unless it answered Interrogatory Number Two finding

that M-I was negligent, we interpret the two interrogatories together to conclude

that the jury answered Interrogatory Number Two in the affirmative but

inadvertently failed to mark the answer. That being the case, the jury found for the

plaintiffs on the first and second elements of the duty-risk analysis, but found for

M-I on at least one of the remaining three elements of the duty-risk analysis.

In rejecting the plaintiffs‟ motion for a JNOV, the trial court found that the

facts and inferences did not point so strongly and overwhelmingly in favor of the

plaintiffs that reasonable persons could not arrive at a contrary verdict. Joseph,

772 So.2d 94. While the interrogatory was not couched in a manner which would

indicate exactly which of the final three elements the jury found were not proven

by a preponderance of the evidence, we can envision a number of scenarios under

which the jury might reach a negative finding on one or more of the last three

elements. The most logical is that given the conflicting nature of the evidence,

particularly the expert evidence, the jury could conclude that M-I‟s failure to act as

a reasonably prudent operator under the circumstances caused the plaintiffs no

damage. In fact, Mr. Broussard testified that the plaintiffs had yet to suffer any

damages as of the time of trial, and that their principal concern involved what

might happen at the end of the lease if M-I did not live up to its contractual

obligations.

37

While another trier of fact might have reached a different conclusion, we

find no manifest error in the jury‟s conclusion on the negligence issues and,

therefore, no manifest error in the trial court‟s denial of the plaintiffs‟ motion for

JNOV on this issue.

For the same reasons, we find no abuse of discretion in the trial court‟s

refusal to grant the plaintiffs a new trial on this issue. Id. Thus, we find no merit

in this assignment of error.

Plaintiffs’ Second Assignment of Error

In this assignment of error, the plaintiffs assert that if this court were to find

that the jury‟s verdict did not result in a finding of negligence because of the

failure of the jury to mark its answer to Interrogatory Number Two, it should find

that the trial court erred in denying their motion for new trial and grant a new trial

based on the supreme court‟s decision in Wegener v. Lafayette Insurance Co., 10-

810, 10-811 (La. 3/15/11), 60 So.3d 1220. Having found that the jury verdict did

result in a finding of negligence on the part of M-I, we need not consider this

assignment of error.

Plaintiffs’ Third Assignment of Error

In this assignment of error, the plaintiffs argue that the trial court erred in

failing to properly instruct the jury on the applicability of both Louisiana‟s pre-

1996 strict-liability statute and negligence per se. However, based on our finding

that the jury verdict did find negligence on the part of M-I and Mr. Broussard‟s

testimony that the plaintiffs have not yet suffered any damages, this argument is

rendered moot. Thus, we find no merit in this assignment of error.

Plaintiffs’ Fourth Assignment of Error

In this assignment of error, the plaintiffs assert that the trial court erred in

denying their motion for JNOV on the contract claim because the record contains
38

“overwhelming evidence” that M-I breached the lease through multiple statutory

and regulatory violations and through conducting unauthorized operations on the

property.

Louisiana Civil Code Article 2668 provides in pertinent part that a “[l]ease

is a synallagmatic contract by which one party, the lessor, binds himself to give to

the other party, the lessee, the use and enjoyment of a thing for a term in exchange

for a rent that the lessee binds himself to pay.” The lease between the plaintiffs

and M-I is categorized as a commercial lease in that the 3.7-acre tract was “to be

used for business or commercial purposes.” La.Civ.Code art. 2671. With regards

to the obligations of the lessee, La.Civ. Code art. 2683 provides the following:

The lessee is bound:

(1) To pay the rent in accordance with the agreed terms;

(2) To use the thing as a prudent administrator and in
accordance with the purpose for which it was leased; and

(3) To return the thing at the end of the lease in a condition that
is the same as it was when the thing was delivered to him, except for
normal wear and tear or as otherwise provided hereafter.

The timely payment of rent is not an issue in this litigation, and the condition of the

property upon its return would only become an issue if we determine that the lease

should be dissolved. Thus, La.Civ.Code art. 2683(2) is the focus of this litigation.

The jury was not asked whether M-I performed under the lease as a prudent

administrator. Instead, the jury was provided a single compound interrogatory and

asked whether the plaintiffs established “by a preponderance of the evidence that

the Defendant is in breach of the „Commercial Lease‟ and caused damage to the

Plaintiffs‟ property?” (emphasis added.) The negative answer to this interrogatory

leaves open the question of whether the jury determined that M-I did not breach

the lease, or breached the lease but that the plaintiffs suffered no damage.

39

The plaintiffs assert on appeal that M-I breached the lease in two ways: (1)

by committing multiple statutory and regulatory violations; and (2) by conducting

manufacturing operations on the property which violated the “Material Storage and

Distribution and purposes incidental thereto” clause of the lease. We will consider

the second of these assertions first.

Louisiana Civil Code Article 2686 provides, in pertinent part, that “[i]f the

lessee uses the thing for a purpose other than that for which it was leased . . . the

lessor may obtain injunctive relief, dissolution of the lease, and any damages he

may have sustained.” However, we do not find that to be the case here. Although

Mr. Broussard testified that the lease was not intended to allow the mixing of

chemicals on the property, it is clear that since the original lease in 1955, the

mixing process has been an integral part of the commercial activity of all lessees,

whether the activity involved mixing drilling mud from scratch or recycling mixing

mud or completion fluids. It would not be manifest error for a jury to conclude

that, given the history of the use of the property and the number of separate

documents executed during that history, the mixing activity now complained of by

the plaintiffs was clearly authorized pursuant to the language found in M-I‟s lease.

Of particular significance with regard to this litigation is the undisputed fact that

the three mixing activities were being performed on the property when the

plaintiffs executed the lease with M-I.

Given that the incidental and essential activity (the mixing processes) has

been accepted activity since 1955, the trial court could conclude that the facts and

inferences did not point so strongly and overwhelmingly in favor of the plaintiffs

that reasonable persons could not have determined that M-I‟s activity in this regard

was not a breach of the lease. Joseph, 772 So.2d 94. While another trier of fact

might well have reached a different conclusion, we find no manifest error in the
40

jury‟s conclusion that M-I did not conduct unauthorized manufacturing activities

on the property and, therefore, no manifest error in the trial court‟s denial of the

plaintiffs‟ motion for JNOV on this issue. For the same reasons, we find no abuse

of discretion in the trial court‟s refusal to grant the plaintiffs a new trial on this

issue. Id.

The same rationale applies to the plaintiffs‟ other complaint that M-I

breached the lease by multiple statutory and regulatory violations. With regard to

this particular argument as it relates to M-I‟s NORM policy, the jury was faced

with conflicting testimony concerning whether DEQ‟s regulations even applied to

M-I‟s activities on the property. The plaintiffs‟ witnesses testified that those

regulations did apply while M-I‟s witnesses took the opposite position.

Additionally, M-I presented testimony to the effect that, while its company policy

concerning NORM looks flawed on the surface, the industry standard was that the

recyclable material delivered to M-I should have been tested for NORM before it

left the offshore or inland waterway rigs, and M-I should have been able to rely on

that testing. In fact, it appears that the only appreciable NORM contamination

occurred in one spot on the property and, when discovered, was removed.

Violations of discharge permits appear in the record, but all are of the accidental

variety. Thus, there is no evidence that M-I intentionally breached any state

statutes or regulations during its tenure as lessee.

Given the record before it, the trial court could determine that the facts and

inferences did not point so strongly and overwhelmingly in favor of the plaintiffs

that reasonable persons could not conclude that M-I did not breach the lease by

multiple statutory and regulatory violations. Joseph, 772 So.2d 94. While another

trier of fact might well have reached a different conclusion, we find no manifest

error in the jury‟s conclusion that M-I did not breach the lease by multiple
41

statutory and regulatory violations and, therefore, no manifest error in the trial

court‟s denial of the plaintiffs‟ motion for JNOV on this issue. For the same

reasons, we find no abuse of discretion in the trial court‟s refusal to grant the

plaintiffs a new trial on this issue. Id.

We find no merit in this assignment of error.

Plaintiffs’ Fifth Assignment of Error

In this assignment of error, the plaintiffs argue that the trial court erred in

denying their motion for a new trial on the basis of M-I‟s significant discovery

abuse. However, in reviewing this issue, we find that not one of the peremptory

grounds exists for granting a motion for new trial pursuant to La.Code Civ.P. art.

1972. We further find no abuse of discretion on the part of the trial court in

denying the plaintiffs‟ motion pursuant to La.Code Civ.P. art. 1973, which allows

the grant of a new trial if good grounds exist for doing so. In denying the

plaintiffs‟ request for sanctions for M-I‟s failure to turn over environmental audits

pertaining to the site, the trial court held that M-I had satisfactorily attempted to

meet plaintiffs‟ requests and that the audits were not crucial to the plaintiffs‟ case.

Accordingly, we find no abuse of discretion in the trial court‟s denial of the

plaintiffs‟ motion for new trial on the basis of M-I‟s alleged discovery abuse.

Plaintiffs’ Sixth Assignment of Error

In this assignment of error, the plaintiffs argue that the trial court erred in

denying the admission of evidence pertaining to M-I‟s other bad acts at other

locations, pursuant to La.Code Evid. art. 404(B)(1) to prove factors such as motive,

intent, knowledge, or absence of motive or accident and to support of their request

for exemplary damages. However, because the trial court‟s ruling on this issue

was reversed on writ by this court and then reinstated by the Louisiana Supreme

Court, we decline to revisit this issue. See unpublished writs Broussard v. Martin
42

Operating P’ship, 10-1535 (La.App. 3 Cir. 12/29/10), writ granted, 10-2874 (La.

1/3/11). Our affirmation of the jury verdict and the trial court judgment further

supports our decision not to revisit this subject. Accordingly, we find no merit in

this assignment of error.

Plaintiffs’ Seventh Assignment of Error

In this final assignment of error, the plaintiffs assert that the trial court erred

in dismissing their entire claim for statutory damages under La.R.S. 30:2276(G)(3).

We find no merit in this assignment of error. That statute provides for the recovery

remedial costs incurred by a person “responding to a discharge or disposal of a

substance covered by [Chapter 12 of Title 30 of the Revised Statutes].” No

remedial costs have been incurred by the plaintiffs.

Future Cleanup Under the Lease

In affirming the jury verdict and the trial court‟s denial of the plaintiffs‟

motion for JNOV and for new trial, we do not reach the issue of the degree of

cleanup required at the end of the M-I lease. The testimony presented by the

experts on both sides of this litigation makes clear that the degree of cleanup

required by the regulatory agencies and those required under contract are not one

and the same, and that if a party contracts to a more stringent cleanup standard than

that required by the regulatory agencies, the more stringent standard will be

applicable. That being the case, we do not construe the jury verdict nor the

subsequent trial court rulings to suggest that M-I has or has not complied with the

obligations which will arise at the end of this commercial lease.

DISPOSITION

For the foregoing reasons, we reject the motion to dismiss the appeal filed

by the defendant, M-I, LLC d/b/a M-I Drilling Fluids LLC and M-I SWACO. We

affirm the jury and trial court judgment in favor defendant, M-I, LLC d/b/a M-I
43

Drilling Fluids LLC and M-I SWACO, dismissing the claims of the plaintiffs,

Whitestone, Inc. and Vallee Land Company, LLC, the remaining plaintiffs at trial.

We assess all costs of this appeal to Whitestone, Inc. and Vallee Land Company,

LLC.

AFFIRMED.

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