Rain Cii Carbon, LLC v. Turner Industries Group, LLC

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-223

RAIN CII CARBON LLC

VERSUS

TURNER INDUSTRIES GROUP, LLC,
RECON ENGINEERING, INC., AND
VICTORY ENERGY OPERATIONS, LLC

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU, NO. 2013-1325, DIVISION D
THE HONORABLE ROBERT L. WYATT, PRESIDING

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ELIZABETH A. PICKETT

JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

DEVOLUTIVE APPEAL DISMISSED
WITHOUT PREJUDICE.

Ashley Lucile Belleau
Joseph Briggett
LUGENBULHL, WHEATON, PECK,
RANKIN & HUBBARD
601 Poydras Street, Suite 2775
New Orleans, Louisiana 70130
(504) 568-1990
COUNSEL FOR DEFENDANT/APPELLEE:
Victory Energy Operations, LLC

Sidney Wallis Degan, III
Travis Louis Bourgeois
Karl H. Schmid
DEGAN, BLANCHARD & NASH
400 Poydras Street, Suite 2600
New Orleans, Louisiana 70130
(504) 529-3333
COUNSEL FOR DEFENDANTS/APPELLEES:
Illinois National Insurance Company and
Chartis Specialty Insurance Company

Joseph A. Delafield, Attorney at Law
3401 Ryan Street, #307
Lake Charles, Louisiana 70605
(337) 477-4655
COUNSEL FOR DEFENDANT:
Turner Industries Group, LLC

James M. Garner
Peter L. Hilbert, Jr.
Thomas J. Madigan, II
Emily E. Ross
SHER GARNER CAHILL RICHTER KLEIN
& HILBERT, LLC
909 Poydras Street, 28th Floor
New Orleans, Louisiana 70112
(504) 299-2100
COUNSEL FOR PLAINTIFF/APPELLANT:
Rain CII Carbon LLC

Christopher P. Ieyoub
PLAUCHE, SMITH & NIESET, LLC
Post Office Drawer 1705
Lake Charles, Louisiana 70602
(337) 436-0522
COUNSEL FOR DEFENDANT/APPELLEE:
ReCon Engineering, Inc.

Patrick J. McShane
Danica Benbow Denny
Kathleen P. Rice
Lauren A. Guichard
FRILOT, LLC
3700 Energy Center
1100 Poydras Street
New Orleans, Louisiana 70163-3600
(504) 599-8000
COUNSEL FOR DEFENDANT/APPELLEE:
Alterra America Insurance Company

Robert I. Siegel
Alistair M. Ward
GIEGER, LABORDE & LAPEROUSE, LLC
Suite 4800 One Shell Square
701 Poydras Street
New Orleans, Louisiana 70139-4800
COUNSEL FOR DEFENDANT/APPELLEE:
Catlin Specialty Insurance Company

Kristopher T. Wilson
Heather N. Sharp
LUGENBULHL, WHEATON, PECK,
RANKIN & HUBBARD
601 Poydras Street, Suite 2775
New Orleans, Louisiana 70130
(504) 568-1990
COUNSEL FOR DEFENDANT/APPELLEE:
First Financial Insurance Company

PICKETT, Judge.

This court, on its own motion, issued a rule to the appellant, Rain CII

Carbon LLC (Rain), to show cause why its appeal should not be dismissed as

having been taken from a non-appealable interlocutory judgment. See La.Code

Civ.P. art. 1915(B). For the reasons that follow, we dismiss the appeal.

Rain produces calcined petroleum coke, which is a critical component for

aluminum production. The process requires a considerable amount of heat, and

Rain undertook a major endeavor to build a waste heat recovery power generation

unit at its facility in order to capture heat exhausted from the calcining process and

covert it to usable electricity. ReCon Engineering, Inc. (ReCon), was retained to

provide engineering services for the project. Turner Industries Group, LLC

(Turner), was retained to provide construction management and vendor

surveillance. Victory Entergy Operations, LLC (Victory), was retained to fabricate

equipment for the project.

Several disputes arose, and on March 15, 2013, Rain filed suit against

ReCon, Turner, and Victory seeking damages for the added labor and expenses

that allegedly resulted from the negligence of ReCon, Turner, and Victory. When

Rain amended its petition to add claims under the Louisiana Direct Action Statute,

La.R.S. 22:1269, ReCon’s insurers, Alterra America Insurance Company, Chartis

Specialty Insurance Company, Illinois National Insurance Company, First

Financial Insurance Company, and Catlin Specialty Insurance Company

(hereinafter collectively referred to as the Insurers), were added as defendants. The

Insurers filed exceptions of no right of action, prematurity, and lis pendens. The

no right of action exception alleged that because Rain’s claims against ReCon were

all contractual in nature, they did not fall under the Louisiana Direct Action Statute.

The Insurers’ exceptions came for hearing on October 4, 2016, and the trial

court granted the exception of no right of action. The Insurers submitted the

judgment that was ultimately signed by the trial court. 1 That judgment granted the

exception of no right of action, finding that Rain’s claims against ReCon (the

insured) arose solely out of contractual obligations and, consequently, dismissed

Rain’s claims against the Insurers with prejudice on the petitions previously filed

in the case.

Louisiana Code of Civil Procedure Article 1915(B)(1) provides:

(1) When a court renders a partial judgment or partial summary
judgment or sustains an exception in part, as to one or more but less
than all of the claims, demands, issues, or theories against a party,
whether in an original demand, reconventional demand, cross-claim,
third-party claim, or intervention, the judgment shall not constitute a
final judgment unless it is designated as a final judgment by the court
after an express determination that there is no just reason for delay.

We find that the grant of the peremptory exception of no right of action

dismissing Rain’s claims against the Insurers is a partial judgment pursuant to

La.Code Civ.P. art. 1915(B). Had the judgment completely dismissed any party, it

would have been a partial final judgment under La.Code Civ.P. art. 1915(A)(1)

with no need for a designation. However, the fourth amended petition was filed on

November 22, 2016, after the hearing on the exceptions and prior to the signing of

the appealed judgment. The fourth amended petition reflected the fact that Rain

reached a settlement with ReCon 2 and XL Specialty Insurance but reserved its

rights against Alterra America, Catlin Specialty, First Financial, Chartis Specialty,

and Illinois National. The fourth amended petition asserted claims against ReCon

and the Insurers for negligence and property damages (as opposed to the claims

1
Rain submitted its own version of the judgment which included language to dismiss the
claims without prejudice with time to amend the petition. Rain’s version was rejected by the
trial court.
2
ReCon remained as a nominal defendant to satisfy the requirements of Louisiana’s
Direct Action Statute.
2

alleging breach of contract). Thus, the Insurers remained as defendants even after

their exception of no right of action was granted because the granting of the

exception did not concern the allegations made in the fourth amended petition.

Because no party was completely dismissed from the litigation by the

granting of the exception, this judgment falls squarely within the ambit of La.Code

Civ.P. art. 1915(B). The judgment at issue in this matter was not designated by the

trial court as appealable, and, absent such a designation, it is not appealable at this

time. Rain is free to seek the required designation under La.Code Civ.P. art.

1915(B) and then file an appeal of that judgment. We decline to exercise our

supervisory jurisdiction to convert this writ to an appeal even though Rain filed a

notice of intent to apply for supervisory writs simultaneously with the filing of its

petition for appeal. We find that Rain will have an adequate remedy through an

ordinary appeal once a judgment with a designation of finality under La.Code

Civ.P. art. 1915(B)(1) is obtained 3 or by an appeal following the complete

adjudication of this suit.

The devolutive appeal is hereby dismissed without prejudice.

DEVOLUTIVE APPEAL DISMISSED WITHOUT PREJUDICE.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal.

3
Should the trial court refuse to designate the judgment as final, Rain can seek review of
that refusal by writ application. See Miller v. Tassin, 02-2383 (La.App. 4 Cir. 6/4/03), 849 So.2d
782.
3