State ex rel. Guilbeau v. BEPCO, L.P.

341 So.3d 1

STATE of Louisiana, EX REL. Kenneth James GUILBEAU

v.BEPCO, L.P., BOPCO, L.P., Chisolm Trail Ventures, L.P., and Hess Corporation, a Delaware Corporation

NUMBER 2020 CA 0429, NUMBER 2020 CA 0732

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: SEPTEMBER 20, 2021

Rehearing Denied May 4, 2022

Victor L. Marcello, Donald T. Carmouche, John H. Carmouche, William R. Coenen, III, Brian T. Carmouche, Todd J. Wimberley, Ross J. Donnes, D. Adele Owen, Baton Rouge, LA and Jerold Edward Knoll, Sr., Marksville, LA, Counsel for Plaintiff/Appellant, State of Louisiana ex rel., Kenneth James Guilbeau

Jonathan A. Hunter, Robert B. McNeal, Elizabeth S. Wheeler, Kelly Brechtel Becker, Erin E. Bambrick, New Orleans, LA, Counsel for Defendant/Appellee, Hess Corporation

Loulan J. Pitre, Jr., Aimee Williams Hebert, Jane A. Jackson, Rebecca M. Guidry, New Orleans, LA and Michael P. Cash, Houston, TX and Jamie D. Rhymes, Hunter A. Chauvin, Lafayette, LA, Counsel for Defendant/Appellee, Chisolm Trail Ventures, L.P., BEPCO, L.P. and BOPCO, L.P.

BEFORE: GUIDRY, McCLENDON, AND LANIER, JJ.

GUIDRY, J.

Plaintiff, State of Louisiana ex rel. Kenneth James Guilbeau, appeals from a trial court judgment sustaining the peremptory exception raising the objection of res judicata and a trial court judgment sustaining the peremptory exception raising the objection of prescription. Each judgment dismissed all claims against defendant, Hess Corporation, with prejudice. For the reasons that follow, we reverse the judgments of the trial court and remand this matter with instructions for further proceedings.

FACTS AND PROCEDURAL HISTORY

Guilbeau, Justin Dale Tureau, and Ritchie Grocer Company own contiguous tracts of land in Avoyelles Parish. On July 23, 2013, these three landowners filed a petition for damages in the Twelfth Judicial District Court, naming Hess as a defendant¹ and alleging that their property had been contaminated or otherwise damaged by defendant's oil and gas exploration and production activities. Plaintiffs sought damages for defendant's tortious conduct. The suit was thereafter removed to U.S. District Court for the Western District and severed into three separate actions. On August 22, 2016, the U.S. District Court dismissed Guilbeau's suit (Guilbeau I) after finding that Guilbeau lacked a right of action under applicable Louisiana law to bring such claims for pre-acquisition damage to property.

Thereafter, on August 31, 2016 and September 27, 2016, Guilbeau sent letters to the Commissioner of Conservation stating that he had conducted an environmental assessment of the property, which revealed numerous, serious violations of Statewide Order 29-B. As such, Guilbeau stated that pursuant to La. R.S. 30:16, the letter served as formal notice of regulatory violations under La. R.S. 30.14, and that if the commissioner did not take action within ten days, he would sue the responsible parties for injunctive and other appropriate relief.

When the Commissioner failed to take any action on Guilbeau's notice of violations, Guilbeau filed a petition for damages against Hess on May 9, 2017, in the Twelfth Judicial District Court, naming the plaintiff as the State of Louisiana ex rel. Guilbeau. Guilbeau asserted claims for injunctive relief and remediation under La. R.S. 30:16 for the same contamination that was the subject of Guilbeau I. The case was removed to the U.S. District Court for the Western District but was subsequently voluntarily dismissed by Guilbeau (Guilbeau II).

Thereafter, on September 15, 2017, Guilbeau filed the instant action in the Nineteenth Judicial District Court, again naming State of Louisiana ex rel. Guilbeau as the plaintiff and Hess as a defendant. The allegations contained in the instant suit are virtually identical to those contained in Guilbeau II. Particularly, Guilbeau asserted that the defendants are violating Statewide Order 29-B and other regulations and orders of the Louisiana Department of Natural Resources and Office of Conservation by failing to remediate the Guilbeau property to the standards set forth in Statewide Order 29-B. Guilbeau alleged that under La. R.S. 30:16, any violations, whether past or present, are deemed ongoing violations until the law has been complied with. Guilbeau asserted that he is a "person in interest" adversely affected by these violations and as such, sought a mandatory and prohibitive injunction ordering defendants to remediate the contamination on his property to a level that complies with applicable regulations and restraining defendants from further violating or threatening to violate the applicable regulations.

On September 20, 2019, Hess filed a peremptory exception raising the objections of res judicata and prescription. With regard to res judicata, Hess asserted that the facts alleged in the instant lawsuit were already alleged and dismissed with prejudice in 2016. Hess asserted that the August 2016 judgment dismissing Guilbeau's claims is valid, final and conclusive between the same parties at issue in the instant suit. Further, Hess asserted that the factual allegations in the instant suit are identical to those alleged in the 2013 suit, and that there is no reason that Guilbeau could not have asserted his current cause of action in that initial suit.

With regard to prescription, Hess asserted that, assuming La. R.S. 30:16 permits Guilbeau to file suit to remedy historical violations that occurred decades Guilbeau's claims are prescribed. Hess asserted that operations by Hess's predecessors ceased in 1971 and that Guilbeau had actual knowledge of alleged regulatory violations and resulting damage no later than July 23, 2013, when Guilbeau filed Guilbeau I. Hess asserted that suits under La. R.S. 30:16 are subject to a liberative prescriptive period of one year. In support of its assertion, Hess argued that in determining the applicable prescriptive period for the breach of a legal obligation, Louisiana courts look to the closest analogous situation provided for in the Civil Code. Hess analogized actions arising under environmental statutes to tort claims and as such, a one-year prescriptive period should apply.

Guilbeau opposed the exceptions, asserting that as to res judicata there was no identity of parties because Guilbeau is not appearing in the same capacity as in the prior actions. With regard to prescription, Guilbeau asserted that claims under La. R.S. 30:14 are imprescriptible and further, that a violation that has not been remedied remains a violation.

Following a hearing on the exceptions on December 16, 2019, the trial court signed a judgment on January 15, 2020, sustaining the peremptory exception raising the objection of prescription and dismissing all claims against Hess with prejudice. The trial court signed a judgment on the same date sustaining the exception raising the objection of res judicata and dismissing all claims against Hess with prejudice. On March 2, 2020, Guilbeau filed a motion for devolutive appeal from the trial court's judgment on prescription. On July 21, 2020, Guilbeau filed a motion for devolutive appeal from the trial court's judgment sustaining the exception raising the objection of res judicata. Both appeals were lodged separately in this court. Hess subsequently filed an unopposed motion to consolidate the two appeals, which was granted by this court on November 20, 2020. Additionally, this court, ex proprio motu, issued a Rule to Show Cause, noting that the appeal from the July 15, 2020 judgment sustaining the exception raising the objection of res judicata appeared untimely. On October 26, 2020, a separate panel of this court issued an order maintaining the appeal. However, the final determination as to whether the appeal should be maintained was reserved for the panel to which the appeal was assigned.

DISCUSSION

Rule to Show Cause

As previously noted, the trial court signed two judgments on January 15, 2020, one sustaining the exception raising the objection of prescription and one sustaining the exception raising the objection of res judicata. Guilbeau filed a motion for appeal from the judgment relating to prescription, which was docketed as appeal number 2020CA0429. Thereafter, on July 21, 2020, Guilbeau filed a motion for appeal from the judgment sustaining the exception raising the objection of res judicata , which was docketed at appeal number 2020CA0732. Because the second judgment appeared untimely, having been signed on January 15, 2020, this court issued a rule to show cause as to why appeal number 2020CA0732 should not be dismissed.

In response to this court's show cause order, Guilbeau and Hess stated that they were unaware until July 2020 that the trial court had signed a second judgment sustaining the exception raising the objection of res judicata. This is confirmed by a joint letter sent by the parties to this court on July 14, 2020, wherein the parties stated that they had become aware after the filing of appeal number 2020CA0429 that the trial court had signed a separate, second judgment also dated January 15, 2020, sustaining the exception raising the objection of res judicata. The parties stated that they did not receive notice of this judgment until it was mailed to the parties on July 6, 2020, and stated that they would be filing a motion for devolutive appeal as to that judgment in the near future. According to the parties, notice of the res judicata judgment was not sent to the parties until counsel for Hess contacted the clerk of court and requested that notice be sent to the parties.

From our review of the records in this case, it is evident that there is no copy or any reference to a judgment sustaining the exception raising the objection of res judicata or notice to the parties thereof in the record for appeal number 2020CA0429. The judgment on the exception raising the objection of res judicata and notice thereof are only found in the record for appeal number 2020CA0732, despite...