D & D Drilling & Exploration, Inc. v. Xto Energy, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-626 consolidated with 15-631

D & D DRILLING & EXPLORATION, INC.

VERSUS

XTO ENERGY, INC., ET AL.

**********

APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 49008
HONORABLE RONALD L. LEWELLYN, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

WRITS GRANTED AND MADE PEREMPTORY.

Leo Boothe
Attorney at Law
4134 Dunbarton Road
Ferriday, LA 71334
(318) 744-5414
COUNSEL FOR PLAINTIFF/RESPONDENT:
D & D Drilling & Exploration, Inc.

William C. Rowe, Jr.
Joseph S. Manning
Jeffrey Scott Wittenbrink
Leighann N. Guilbeau
David C. Bolton
Mary Katherine Shoenfelt
Rowe Law Firm, LLC
5157 Bluebonnet Blvd.
Baton Rouge, LA 70809
(225) 293-8787
COUNSEL FOR PLAINTIFF/RESPONDENT:
D & D Drilling & Exploration, Inc.

Joseph I. Giarrusso, III
Joe Barrelle Norman
Kathryn Z. Gonski
Jaclyn E. Hickman
Liskow & Lewis
One Shell Square
701 Poydras St., #5000
New Orleans, LA 70139-5099
(504) 581-7979
COUNSEL FOR DEFENDANT RESPONDENT:
XTO Energy, Inc.

Paul Matthew Jones
Liskow & Lewis
P. O. Box 52008
Lafayette, LA 70505-2008

Michael P. Cash
Liskow & Lewis
1001 Fannin St., Ste 1800
Houston, TX 77002
(713) 651-2900
COUNSEL FOR DEFENDANT/RESPONDENT:
XTO Energy, Inc.

Paula M. Wellons
Charles J. Duhe, Jr.
Michelle Louise Maraist
Taylor, Wellons, Politz, & Duhe, APLC
1515 Poydras Street, #1900
New Orleans, LA 70112
(504) 525-9888
COUNSEL FOR DEFENDANTS/APPLICANTS:
Clifton D. Pritchard
Alliance Drilling Consultants, LLC

Barbara Bell Melton
Christie C. Wood
Faircloth, Melton, & Keiser, LLC
105 Yorktown Drive
Alexandria, LA 71303
(318) 619-7755
COUNSEL FOR DEFENDANTS/APPLICANTS:
Clifton D. Pritchard
Alliance Drilling Consultants, LLC

Gerald Anthony Melchiode
James J. Reeves, II
Melchiode Marks King, LLC
639 Loyola Ave, Ste 2550
New Orleans, LA 70113
(504) 336-2880
COUNSEL FOR DEFENDANTS/APPLICANTS:
James River Insurance Company

GREMILLION, Judge.

This matter comes before us on remand from the Louisiana Supreme Court.

D&D Drilling & Exploration, Inc. v. XTO Energy, Inc., 15-1881 (La. 11/20/15),

180 So.3d 313. The issue in the case is whether venue is proper in Concordia

Parish. For the reasons that follow, we conclude that venue is not proper in

Concordia Parish; therefore, we grant the applicants’ applications for writs

peremptorily and order the matter transferred to the Twenty-Eighth Judicial

District Court.

FACTS AND PROCEDURAL HISTORY

D&D Drilling & Exploration, Inc. (D&D) filed suit on December 14, 2014

in the Seventh Judicial District Court in Concordia Parish against XTO Energy, Inc.

(XTO), Alliance Drilling Consultants, LLC (Alliance), Clifton Pritchard, and

James River Insurance Company, for damages resulting from the loss of its drilling

rig, known as Rig 1, on July 14, 2014. D&D’s petition alleged that the suit against

XTO was being pursued under the terms of a contract it had with XTO, and the

remaining defendants were being sued in tort. The destruction of Rig 1 occurred in

LaSalle Parish at a site known as La. Central Oil & Gas Well E77. According to

the allegations of D&D’s petition, Rig 1 was lost because Mr. Pritchard, an

employee of Alliance, which XTO had retained to operate the rig, failed to ensure

that sufficient bentonite well mud was on hand at the rig. D&D further contends

that the lack of sufficient mud resulted in the well blowing out and erupting in fire.

D&D is domiciled in Concordia Parish. XTO is a Delaware corporation and

was served through its registered agent for service of process in Baton Rouge.

Alliance and Mr. Pritchard are domiciled in LaSalle Parish. James River is a

foreign insurer served through the Louisiana Secretary of State.

XTO filed an exception of improper venue in which it argued that venue was

improper in Concordia Parish. James River filed a similar exception, followed by

Alliance and Mr. Pritchard. The exceptions were heard and denied on March 16,

2015. The judgment denying the exceptions was signed on May 1, 2015. On May

18, James River, Alliance, and Mr. Pritchard filed a joint answer. The following

day, they filed a notice of their intent to seek supervisory writs from this court.

XTO filed its notice of intent to seek writs on May 20. We denied writs on

September 17, 2015. On November 20, 2015, the Louisiana Supreme Court

granted James River’s application for supervisory or remedial writs and remanded

to this court for full briefing and argument.

ANALYSIS

In suits involving two or more defendants, those defendants may be joined in

the same suit if the following requirements are met:

(1) There exists a community of interest between the parties;

(2) Each of the actions cumulated is within the jurisdiction of the court;

(3) Each of the actions is brought in a parish of proper venue; and

(4) All of the actions are mutually consistent and employ the same form of

procedure.

La.Code Civ.P. art. 463. Thus, a suit against two or more defendants must be filed

in a parish of proper venue as to all defendants. See Abshire v. State, Through

Dep’t of Ins., 93-923 (La.App. 3 Cir. 4/6/94) 636 So.2d 627, writ denied, 94-1213

(La.6/24/94), 640 So.2d 1332.

Venue is governed by Book I, Title I, Chapter 2, of the Louisiana Code of

Civil Procedure. The general rules of venue are stated in La.Code Civ.P. art. 42:

The general rules of venue are that an action against:

2

(1) An individual who is domiciled in the state shall be brought
in the parish of his domicile; or if he resides but is not domiciled in
the state, in the parish of his residence.

(2) A domestic corporation, a domestic insurer, or a domestic
limited liability company shall be brought in the parish where its
registered office is located.

(3) A domestic partnership, or a domestic unincorporated
association, shall be brought in the parish where its principal business
establishment is located.

(4) A foreign corporation or foreign limited liability company
licensed to do business in this state shall be brought in the parish
where its principal business establishment is located as designated in
its application to do business in the state, or, if no such designation is
made, then in the parish where its primary place of business in the
state is located.

(5) A foreign corporation or a foreign limited liability company
not licensed to do business in the state, or a nonresident who has not
appointed an agent for the service of process in the manner provided
by law, other than a foreign or alien insurer, shall be brought in the
parish of the plaintiff's domicile or in a parish where the process may
be, and subsequently is, served on the defendant.

(6) A nonresident, other than a foreign corporation or a foreign
or alien insurer, who has appointed an agent for the service of process
in the manner provided by law, shall be brought in the parish of the
designated post office address of an agent for the service of process.

(7) A foreign or alien insurer shall be brought in the parish of
East Baton Rouge.

Thus, under the general rule of Article 42, the action against Alliance, Mr.

Pritchard, and James River, Alliance’s insurer, would be proper in LaSalle Parish

and against XTO and James River would be proper in East Baton Rouge Parish.

Venue in Concordia Parish would not be proper under Article 42.

However, the Code of Civil Procedure venue articles admit of a variety of

exceptions to the general rules. In the ordinary course of proceedings, a mover or

exceptor bears the burden of proof. However, a plaintiff seeking to establish venue

3

by invoking the exceptions to the general rules of venue bears the burden of proof.

See Price v. Roy O. Martin Lumber Co., 03-2647, 03-2669, 03-2670, 03-2671, 04-

227 (La.App. 3 Cir. 4/27/05), 915 So.2d 816, writ denied, 05-1390 (La. 1/27/06),

922 So.2d 543. Appellate courts conduct de novo reviews of venue questions. Id.

One exception that appears pertinent to this matter is found in La.Code

Civ.P. art. 76.1, which states, “An action on a contract may be brought in the

parish where the contract was executed or the parish where any work or service

was performed or was to be performed under the terms of the contract.” D&D

executed the contract in Concordia Parish, so venue would be appropriate as to the

other party to that contract, XTO, in Concordia Parish. LaSalle Parish would also

be a proper venue under Article 76.1, for that is where the work or service was

performed under the contract.

Another exception pertinent to this case is found in La.Code Civ.P. art. 74,

which provides:

An action for the recovery of damages for an offense or quasi
offense may be brought in the parish where the wrongful conduct
occurred, or in the parish where the damages were sustained. An
action to enjoin the commission of an offense or quasi offense may be
brought in the parish where the wrongful conduct occurred or may
occur.

As used herein, the words “offense or quasi offense” include a
nuisance and a violation of Article 667 of the Civil Code.

D&D asserted its demands against Alliance and Mr. Pritchard in tort. Venue

under Article 74 would clearly be proper in LaSalle Parish. However, D&D argues

that this case calls for an extension of the concept of “where damages were

sustained” to include Concordia Parish. We disagree. We see no sound policy

reason to ignore the legion of cases that hold that the parish where the wrongful

conduct occurred is the parish where damages were sustained under Article 74.

4

See, e.g., Town of Eunice v. M&L Constr. Co., 123 So.2d 579 (La.App. 3 Cir.

1960). In Fogleman Truck Line, Inc. v. Southern Bulk Carriers, Inc., 532 So.2d

226, (La.App. 3 Cir. 1988), we quoted with approval our colleagues on the first

circuit in Belser v. St. Paul Fire & Marine Ins., 509 So.2d 12 (La.App. 1 Cir.

1987). The Belser court undertook an exhaustive analysis of the jurisprudence

interpreting Article 74, and concluded:

The common thread that runs through the Coursey-Foster-
King-Williams-Lapeyrouse line of cases is that, if any damage is
caused to the plaintiff in the parish where the wrongful conduct
occurred, that parish, and no other, is “the parish where the damages
were sustained” for purposes of Article 74. This holding is consistent
with the jurisprudence that Article 74 must be strictly construed. This
holding evidences public policy determinations by the Coursey-
Foster-King-Williams-Lapeyrouse courts that forum shopping should
be minimized in actions for the recovery of damages for offenses and
quasi offenses.

Id. at 18-19. The loss of Rig 1 is the basis for D&D’s suit. That loss occurred in

LaSalle Parish. LaSalle Parish is the only proper venue under Article 74.

Another exception potentially applicable to this case is Article 76.1, which

states, “An action on a contract may be brought in the parish where the contract

was executed or the parish where any work or service was performed or was to be

performed under the terms of the contract.” D&D executed the contract in

Concordia Parish, which would make Concordia Parish a parish of proper venue.

Based solely upon the D&D/XTO contract, that article would not extend venue to

Alliance, Mr. Pritchard, or James River even were they joint or solidary obligors of

XTO, because the article that governs venue in the case of joint and solidary

obligors, La.Code Civ.P. art. 73, limits its exception to proper venues under Article

42 only:

5

An action against joint or solidary obligors may be brought in a
parish of proper venue, under Article 42 only, as to any obligor who is
made a defendant provided that an action for the recovery of damages
for an offense or quasi-offense against joint or solidary obligors may
be brought in the parish where the plaintiff is domiciled if the parish
of plaintiff’s domicile would be a parish of proper venue against any
defendant under either Article 76 or R.S. 13:3203.1

However, D&D argues that it did have a verbal agreement with Alliance,

which would confer venue upon Concordia Parish. It never alleged that in its

petition. It certainly offered no evidence at the hearing on the exceptions to prove

that there was a contract.

Further, D&D argues, the retainer of Alliance and Pritchard by XTO

constitutes a contract for D&D’s benefit, a stipulation for a third party under

La.Civ.Code art. 1978 et seq., known in Louisiana as a stipulation pour autri.

Assuming that such a written contract exists, it was not offered into evidence on

the exception. One attempting to prove the existence of a stipulation for a third

party bears the burden of proving its existence. Grabowski v. Smith & Nephew,

Inc., 13-1409, 14-433 (La.App. 3 Cir. 10/1/14), 149 So.3d 899, writ denied, 14-

2291 (La. 1/23/15), 159 So.3d 1057. Because the stipulation was not proven, we

need not address its effect, if any, on the issue of venue.

Lastly, D&D argues that Alliance, Mr. Pritchard, and James River have

waived their rights to object to venue in this proceeding because they filed answers

before they filed their notices to apply for writs. We disagree. Although the

exceptions had been denied, those parties did timely manifest their intent to apply

for writs. Had they not filed answers, they would have left themselves at jeopardy

of the entry of default judgments against them. D&D’s assertion would effectively

1
Louisiana Revised Statutes 13:3203 allows for proper venue in the parish of the
plaintiff’s domicile when the defendant is a nonresident served via long-arm. Louisiana Code of
Civil Procedure art. 76 governs venue in actions based upon insurance policies.

6

denude any defendant of the right to appeal an adverse ruling on an exception of

venue, as opposed to seeking redress through an application for supervisory writs.

CONCLUSION

It is apparent from the face of the petition that Concordia Parish is not a

proper venue for this matter under the general rules of venue found in La.Code

Civ.P. art. 42. Venue is not proper in Concordia Parish under La.Code Civ.P. art.

74 because the tortious conduct allegedly occurred and damages sustained in

LaSalle Parish. Venue is not proper in Concordia Parish under La.Code Civ.P. art.

76.1 because the only parties to the contract are D&D and XTO; venue must be

established as to all defendants, and the fact that there may exist joint liability

among the defendants does not render Concordia Parish a parish of proper venue

because it would not be proper under Article 42. D&D offered no proof of any

contractual provision that would constitute a stipulation for its benefit, even if that

contract might establish venue in Concordia Parish. We reject D&D’s contention

that Alliance, Mr. Pritchard, and James River waived their right to contest the

propriety of venue in Concordia Parish by filing answers before they sought

supervisory writs from this court.

The judgment of the trial court denying the defendants’ exceptions of

improper venue is reversed. The matter is ordered transferred to the Twenty-

Eighth Judicial District Court. All costs of these proceedings are taxed to

Respondent, D&D Drilling & Exploration, Inc.

WRITS GRANTED AND MADE PEREMPTORY.

7