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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SUPPLEMENTAL OPINION

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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.

On November 21, 2012, this court rendered an opinion in this matter

addressing the assignments of error raised by the plaintiffs remaining in this

litigation, Whitestone, Inc. (Whitestone) and Vallee Land Company, LLC (Vallee

Land). In doing so, we failed to address the assignments of error raised by the

defendant, 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”) in a separate

appeal. We render this supplemental opinion for the limited purpose of addressing

and disposing of those assignments of error. For the following reasons, we reject

all the assignments of error raised by M-I in its appeal.

We have set the factual and procedural history out in detail in the original

opinion and will not repeat that history in this supplemental opinion. It is

sufficient to say that subsequent to the JNOV and new trial motion filed by

Whitestone and Vallee Land, M-I filed a motion seeking to recover costs, interest,

and attorney fees pursuant to La.Code Civ.P. art. 970. It based its claim on the

plaintiffs‟ prior rejection of its August 14, 2008 settlement offer of $75,000.00.

Because of the plaintiffs‟ rejection of that offer, M-I asserts that it subsequently

incurred an additional $648,011.17 in litigation expenses. As an alternative claim

for relief in its motion, M-I sought a judgment awarding it $237,398.46 in costs

pursuant to La.Code Civ.P. art. 1920.

Following a hearing on M-I‟s motion, the trial court rejected the claim for

litigation expenses based on the plaintiffs‟ rejection of M-I‟s previous settlement

offer. However, the trial court did grant M-I‟s motion to assess the costs against

the plaintiffs, but assessed only $9,500.00 in expert witness fees. After the trial

court executed a judgment on the motion on August 18, 2011, M-I perfected this

appeal.

In its appeal, M-I raised its assignment of error in essay form:

Judge Arthur J. Planchard was manifestly erroneous in denying
M-I‟s Offer of Judgment when ruling that C.C.P. Art. 970 does not
apply when the defendant/offeror prevails at trial. Further, Judge
Planchard was likewise incorrect in ruling that the Court would have
to consider the offeree‟s perception of the reasonableness of an Offer
of Judgment. The ruling ignores the very wording of the statute and
also places the outcome of an Art. 970 offer within the personal
whim/discretion of the offeree. The statute makes no such distinction.

Judge Planchard also ruled that the defendant was only entitled
to nominal expert fees pursuant to M-I‟s Motion for Judgment for
Taxation of Costs Pursuant to La. C.C.P. Art. 1920.

The Court awarded expert costs of approximately five percent
(5%) of the expert fees submitted.

Further, Judge Planchard failed to place in the Judgment the
actual court costs despite the awarding of court costs and despite
proof/evidence in the record as to the precise number.

Offer of Judgment Issue

Louisiana Code of Civil Procedure Article 970 provides:

A. At any time more than thirty days before the time specified
for the trial of the matter, without any admission of liability, any party
may serve upon an adverse party an offer of judgment for the purpose
of settling all of the claims between them. The offer of judgment shall
be in writing and state that it is made under this Article; specify the
total amount of money of the settlement offer; and specify whether
that amount is inclusive or exclusive of costs, interest, attorney fees,
and any other amount which may be awarded pursuant to statute or
rule. Unless accepted, an offer of judgment shall remain confidential
between the offeror and offeree. If the adverse party, within ten days
after service, serves written notice that the offer is accepted, either
party may move for judgment on the offer. The court shall grant such
judgment on the motion of either party.

B. An offer of judgment not accepted shall be deemed
withdrawn and evidence of an offer of judgment shall not be
admissible except in a proceeding to determine costs pursuant to this
Article.

C. If the final judgment obtained by the plaintiff-offeree is at
least twenty-five percent less than the amount of the offer of judgment
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made by the defendant-offeror or if the final judgment obtained
against the defendant-offeree is at least twenty-five percent greater
than the amount of the offer of judgment made by the plaintiff-offeror,
the offeree must pay the offeror‟s costs, exclusive of attorney fees,
incurred after the offer was made, as fixed by the court.

D. The fact that an offer is made but not accepted does not
preclude a subsequent offer or a counter offer. When the liability of
one party to another has been determined by verdict, order, or
judgment, but the amount or extent of the damages remains to be
determined by future proceedings, either party may make an offer of
judgment, which shall have the same effect as an offer made before
trial if it is served within a reasonable time not less than thirty days
before the start of hearings to determine the amount or extent of
damages.

E. For purposes of comparing the amount of money offered in
the offer of judgment to the final judgment obtained, which judgment
shall take into account any additur or remittitur, the final judgment
obtained shall not include any amounts attributable to costs, interest,
or attorney fees, or to any other amount which may be awarded
pursuant to statute or rule, unless such amount was expressly included
in the offer.

F. A judgment granted on a motion for judgment on an offer of
judgment is a final judgment when signed by the judge; however, an
appeal cannot be taken by a party who has consented to the judgment.

In Cotton v. Delta Queen Steamboat Co., 09-736, pp. 12-14 (La.App. 4 Cir.

1/6/10), 36 So.3d 262, 271-72 (footnotes omitted) (alterations in original), the

court stated:

The United States Supreme Court in Delta Air Lines, Inc. v.
August, 450 U.S. 346, 352, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981),
narrowly and literally interpreted Fed.R.Civ.P. 68 as not applying to
“a case in which judgment is entered against the plaintiff-offeree and
in favor of the defendant-offeror.” The words “in favor of the
defendant-offeror” clearly apply “only to offers made by the
defendant and only to judgments obtained by the plaintiff.” The rule
is “simply inapplicable to” a case in which “the defendant . . ..
obtained the judgment.” Id.

[I]t does not apply to judgments in favor of the defendant
or to judgments in favor of the plaintiff for an amount
greater than the settlement offer. . . . Thus unless we
assume that the Federal Rules were intended to be biased
in favor of defendants, we can conceive of no reason why
defendants-and not plaintiffs-should be given an entirely
risk-free method of denying trial judges the discretion
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that Rule 54(d) confers regardless of the outcome of the
litigation. Id. at 354-55, 101 S.Ct. 1146.

See also La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 333-34
(5th Cir., 1995) (“If a plaintiff takes nothing . . . Rule 68 does not
apply . . . . [T]he rule is not applicable when a defendant actually
prevails over the plaintiff”). See also Louisiana Power & Light Co. v.
Fischbach and Moore, Inc., 1992 WL 329489, p. 2 (E.D.La.1992);
Carino v. Walmart La., LLC, 2007 WL 977553, pp. 1-2
(W.D.La.2007) (“Both the United States Supreme Court and the Fifth
Circuit Court of Appeal have held that Rule 68 does not apply when
the plaintiffs do not obtain a judgment against the offering defendant,
but rather a verdict is entered in favor of the defendant. [citations
omitted].”)

La. C.C.P. art. 970 “is punitive in nature and therefore must be
strictly construed.” Crawford v. United Service Auto. Ass’n., 03-2117,
p. 5 (La.App. 1 Cir. 3/24/05), 899 So.2d 668, 671. There is no basis
for us to apply the provisions of article 970 C more broadly or
leniently than the United States Supreme Court applies rule 68.
Accordingly, the trial court‟s judgment correctly rejected Delta
Queen‟s demand for its post-offer litigation costs because Delta
Queen had actually prevailed over Mr. Cotton.

In UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d

1022, 1050 (9th Cir. 2011) (alterations in original), the Ninth Circuit stated:

Second, Veoh can recover Rule 68 costs only if it is not a prevailing
defendant. In Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101
S.Ct. 1146, 67 L.Ed.2d 287 (1981), the Supreme Court held that Rule
68 “applies only to offers made by the defendant and only to
judgments obtained by the plaintiff,” and “therefore is simply
inapplicable [where] it was the defendant that obtained the judgment.”
See also Goldberg v. Pac. Indem. Co., 627 F.3d 752, 755 (9th
Cir.2010) (“Rule 68 does not allow a defendant to recover costs when
judgment is entered in the defendant‟s favor.”). The Court observed
that holding otherwise would create an odd system in which “any
settlement offer, no matter how small, would apparently trigger the
operation of the Rule,” and “[t]hus any defendant, by performing the
meaningless act of making a nominal settlement offer, could eliminate
the trial judge‟s discretion under Rule 54(d).” Delta, 450 U.S. at 353,
101 S.Ct. 1146. Delta rejected such an understanding of Rule 68:

We cannot reasonably conclude that the drafters of the
Federal Rules intended on the one hand affirmatively to
grant the district judge discretion to deny costs to the
prevailing party under Rule 54(d) and then on the other
hand to give defendants—and only defendants—the
power to take away that discretion by performing a token
act.
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Id.; see also MRO Commc’ns, Inc. v. Am. Tel. & Tel. Co., 197 F.3d
1276, 1280 (9th Cir.1999) (“Where a defendant prevails after making
an offer of judgment, „the trial judge retains his Rule 54(d)
discretion.‟ ” (quoting Delta, 450 U.S. at 354, 101 S.Ct. 1146)).

In the matter before us, M-I prevailed on the merits. Therefore, La.Code

Civ.P. art. 970 is not applicable. We find no error in the trial court‟s denial of M-

I‟s motion on this issue.

Court Costs Issue

Louisiana Code of Civil Procedure Article 1920 provides, “Unless the

judgment provides otherwise, costs shall be paid by the party cast, and may be

taxed by a rule to show cause. Except as otherwise provided by law, the court may

render judgment for costs, or any part thereof, against any party, as it may consider

equitable.” A trial court has “great discretion in awarding costs, including expert

witness fees, deposition costs, exhibit costs, and related expenses.” Health Educ.

and Welfare Fed. Credit Union v. Peoples State Bank, 11-672, p. 17 (La.App. 3 Cir.

12/7/11), 83 So.3d 1055, 1064. Accordingly, we find no error in the trial court‟s

award of $9,500.00 in expert witness fees.

As to the failure of the trial court to insert the actual amount of court costs,

“despite proof/evidence in the record as to the precise amount[,]” we know of no

law which requires the trial court to insert the actual amount of court costs a party

is cast with other than La.R.S. 13:5112, which requires that the actual amount of

court costs be inserted in a judgment finding a political subdivision liable.

DISPOSITION

For the foregoing reasons, we affirm the trial court‟s judgment in favor of

the plaintiffs and against M-I, LLC d/b/a M-I Drilling Fluids LLC and M-I

SWACO, rejecting its request for litigation expenses pursuant to La.Code Civ.P.

art. 970. We further affirm the trial court judgment assessing court costs against
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the plaintiffs, but setting expert witness fees at $9,500.00. We also reject the

request of M-I, LLC, d/b/a M-I Drilling Fluids LLC and M-I SWACO, to require

the trial court to place a specific dollar amount for court costs in the final judgment.

We assess all costs of this separate appeal to M-I, LLC d/b/a M-I Drilling Fluids

LLC and M-I SWACO.

AFFIRMED.

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