Theodore S. Carmichael v. the Bass Partnership and Bopco, L.P.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-10

THEODORE S. CARMICHAEL, ET AL.

VERSUS

THE BASS PARTNERSHIP AND BOPCO, L.P., ET AL.

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

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ON REHEARING

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JIMMIE C. PETERS
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and J. David Painter,
Judges.

REVERSED AND REMANDED.

Nancy Scott Degan
Roy Clifton Cheatwood
Adam Bennett Zuckerman
Baker, Donelson, Bearman
201 St. Charles Ave., #3600
New Orleans, LA 70170
(504) 566-5200
COUNSEL FOR DEFENDANT/APPELLEE:
Samson Resources Co.

Guy Earl Wall
Paul Edward Bullington
Jonathan R. Cook
Wall, Bullington & Cook, LLC
540 Elmwood Park Blvd
New Orleans, LA 70123
(504) 736-0347
COUNSEL FOR DEFENDANTS/APPELLANTS:
BOPCO, L.P.
The Bass Partnership
Gerald Francis Slattery, Jr.
David Stephen Landry
Colleen Carr Jarrott
Schully, Roberts, Slattery
1100 Poydras St., Ste 1800
New Orleans, LA 70163
(504) 585-7800
COUNSEL FOR DEFENDANT/APPELLEE:
Continental Land & Fur Company
David Lyman Browne
Attorney at Law
650 Poydras St., Suite 2150
New Orleans, LA 70130
(504) 648-0171
COUNSEL FOR DEFENDANT/APPELLEE:
Torch Energy Services, Inc.

PETERS, J.

We granted a rehearing in this matter to, for the moment, resolve the

problems created by conflicting decisions from this court which are also in conflict

with the decision of the trial court. The trial court issued summary judgments in

favor of two separate litigants against the Bass Partnership and BOPCO, L.P.

(collectively referred to in the original opinion and in this rehearing opinion as

Bass). Both summary judgments involved the interpretation of an indemnification

clause in a contract assigning certain oil, gas, and mineral leases to Bass on land in

Acadia Parish, Louisiana.

The litigation arose because the landowners of the leased property brought

an action against a number of defendants for restoration damages associated with a

well which had ceased production. These defendants filed cross claims against

each other with each asserting that the contractual assignment of the mineral rights

provided that another party owed indemnification for the costs of restoration. In

separate judgments, the trial court granted summary judgment in favor of Harry H.

Cullen and Continental Land & Fur Company, Inc. (Continental), finding that the

contract documents were not ambiguous and that Bass owed these two parties full

indemnification for the amounts that they had incurred in resolving the claims of

the landowners. These judgments are identical in every respect except for the

names of the separate successful litigants.

Bass separately appealed these judgments, and, without having been

consolidated for appeal purposes, the appeals were assigned by random allotment

to two separate panels of this court meeting in different cycles of the court’s

calendar. The first panel heard the appeal of the judgment in favor of Mr. Cullen

in the January cycle of the court, and, on February 1, 2012, it issued an opinion

wherein it reversed the trial court’s grant of summary judgment in favor of Mr.

Cullen and remanded the matter to the trial court for further proceedings.

Carmichael v. The Bass Partnership, 11-845, 11-669 (La.App. 3 Cir. 2/1/12), ____

So.3d ____. In reversing the trial court judgment, the panel concluded that the

contract documents were ambiguous and that there remained genuine issues of

material fact which precluded the grant of a summary judgment.

On March 1, 2012, the litigants in this appeal filed a joint motion requesting

that the panel, to which this appeal had been assigned, ignore its obligation to

consider the issues before it and render a judgment in the form provided by the

parties wherein this panel would simply adopt, without further review, the opinion

of the panel in the Cullen appeal. Finding that to be an improper action by a

reviewing court, this panel proceeded to independently consider the issues before

us in the second appeal. In doing so, this panel reached a completely different

result from the Cullen panel. This panel concluded that the contract documents

were not ambiguous, but unlike the trial court, we concluded that the documents

provided for a prorated sharing of the expenses of restoration.

Both litigants requested a rehearing, or in the alternative, an en banc hearing

to resolve the conflict within the circuit. In doing so, the litigants suggested that

the two conflicting opinions of this court, rendered in this preliminary stage of the

litigation, has placed the trial court in the position of being unable to comply with

both. We have to agree.

At this preliminary stage of the litigation, seven judges have arrived at three

judgments on the same issue, and these judgments cannot be reconciled. Acting

under the authority of La.Code Civ.P. art. 2164, we find that in the interest of

justice, the appropriate judgment that would be “just, legal, and proper upon the

record on appeal” is to conclude that the very situation before us would require a

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finding that there may exist genuine issues of material fact that can best be

addressed at a trial on the merits. We reach this decision because, while we do not

abandon our analysis of the issues before us, we have to recognize that a rational

trier of fact and three other reviewing judges can reach a totally different result.

While an en banc review might resolve the issue, we conclude that a full trial on

the merits where the litigants have the opportunity to present evidence on every

issue now raised, as well as those that may be raised, would result in a record

better suited for final review than the preliminary record now before us.

That being the case, we vacate the holding in our opinion rendered on May

2, 2012, and render judgment reversing the trial court judgment rendered in favor

of Continental Land & Fur Company, Inc. against Bass Partnership and BOPCO,

L.P., which found that Bass Partnership and BOPCO, L.P. owed defense and

indemnification to Continental Land & Fur Company, Inc. While we do not affirm

the trial court’s rejection of the summary judgment filed by Bass Partnership and

BOPCO, L.P. against Continental Land & Fur Company, Inc., for the reasons set

forth herein, we decline to grant Bass Partnership and BOPCO, L.P. the relief it

sought in that motion for summary judgment. We remand the matter to the trial

court for a trial on the defense and indemnification issues raised in the litigation.

REVERSED AND REMANDED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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