Opposition Brief — Hawthorne Land Co. v. Occidental Chemical Corp (No. 05-1368)

No. 05-1368 - ED

IN THE

Supreme Court of the Hnited States

HAWTHORNE LAND COMPANY; HUGH A. HAWTHORNE

FAMILY CLASS TRUST, BANK ONE TRUST

COMPANY, NA,

Petitioners,

Vv.

OCCIDENTAL CHEMICAL CORPORATION and

TEXAS BRINE COMPANY, LLC,

Successor in Interest to Texas Brine Corporation,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FiFTH CIRCUIT

BRIEF IN OPPOSITION

i ontieeeieenetamenm nena

ee

RENE A. Curry, JR.

Counsel of Record

CHRISTOFFER FRIEND

TERESE M. BENNETT

Curry & Friend, APLC

Whitney Bank Building, Suite 1200

228 St. Charles Avenue

New Orleans, Louisiana 70130

(504) 524-8556

Attorneys for Respondents

202006 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

QUESTION PRESENTED

Whether Petitioners have presented compelling reasons

to justify an exercise of this Court’s supervisory jurisdiction

when the U.S. Fifth Circuit Court of Appeals’ opinion does

not conflict with a decision of this Court or any court of

appeals, and the decision does not involve an important

cr federal question that has not been settled by this Court? The

basis of Petitioners’ request for certiorari review of the Fifth

Circuit’s opinion is simply an alleged misapplication of the

law of joinder and summary judgment.

ii

STATEMENT PURSUANT TO RULE 29.6

The parties to the proceeding below appear in the caption

of this case. Pursuant to Rule 29.6 of this Court, Occidental

Chemical Corporation states that it is an indirect wholly-

owned subsidiary of Occidental Petroleum Corporation.

No publicly-ield corporation owns 10 percent or greater

interest in Texas Brine Company, L.L.C., successor in interest

of Texas Brine Corporation

ii

TABLE OF CONTENTS

CORI IONE POBMNUOR Si a os fa Se ate 5 be

Statement Pursuant to Rule 29.6 ...............

ee NR iii oe oe a ee ee eae

Additional Statutory Provision Involved .........

Summary of the Reasons to Deny the Petition .....

SSEMGMONE OF SG CMOS a a RSE See

Reasons for Denying the Petition ...............

A. The Federal Circuit’s Decision Properly

Applied the Law Governing Amendment,

POUT HNO ROME i sche eee

B. The Federal Circuit Properly Read and

Applied the Law Applicable to the Granting

of the Motion for Summary Judgment Based

OR PROTO ia oS Sk eee 8 5 8 RS

RNR es aS Sa eg ee a ee ee

Page

il

17

iv

TABLE OF CITED AUTHORITIES

Cases:

Albertson v. T.J. Stevenson & Co., 749 F.2d 223

CSE ACES SOD. oa ik ao A Sie aw ewe wn wees

Arguello v. Conoco, Inc., 207 F.3d 803 (Sth Cir.

2000), cert. denied, Escobedo v. Conoco, Inc. , 531

U.S. 814, 121 S. Ct 177, 148 L. Ed. 2d 121 (2002)

oer 4 26-8. .6-0, Be 0-9-0582 -6..:6.4 "S.C. SO. 8. 6LO- 6.6 9:9 62. 946.6 |S.) O83: S

Avatar Exploration, Inc. v. Chevron USA, Inc.,

PIS Tid SPR TION Ge OSES cok pe de eens

Bergeron v. Pan American Assurance Co., 731

So. 2d 1037 (La. App. 4th Cir. 1999) ..........

Blackwell v. Bossier Parish School Board, 747

So. 2d 1248 (La. App. 2d Cir. 1999) ..........

Broussard v. Columbia Gulf Transmission Co.,

FOG Td Bed (ORCI, TIGR) a vein even wee es

Copeland vy. Wasserstein, Perella & Co., 278 F.3d

ATES Cr UR

Cordova v. Hartford Accident & Indemnity Company,

SEE OO, A PT a SOE ea ke KS ee ho se eee

Coryell vy. Phipps, 317 U.S. 406, 63 S. Ct. 291, 87

eR Ee rr ea nretert pepe re Perea

Page

Cited Authorities

Page

Curtis v. City of New Orleans, 2000 WL557399

(E.D. La.), aff’d, 253 F.3d 706 (Sth Cir. 2001) .. 21

Derrick v. Yamaha Power Sports, 850 So.2d 829

GA. BOON, FIGS): oS os ees vn ne Re NS 23

Ducre v. Mine Safety Appliances, 963 F.2d 757

COR Ra PR a 0 a es 0 ee 22

Eldredge v. Martin Marietta Corp., 207 F.3d 737

oR tad ONT os oc ae Sac Mie eee aS 21

Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227,

DF hie Bs Oe EE) bin Fok sb eh aaah ean 11

Guitreau v. Kucharchuk, 763 So. 2d 575 (La. 2000)

aie Cds g Gael a: Riek GEE EAH ottawa REL ae Wake 23

Hawthorne Land Co. v. Occidental Chemical Corp.,

2004 WL 30137 (Sth Cir. 2005); 431 F.3d 221

FP ante e ane Fes pg ae Mee iy ene 7, 20, 26-27

Hawthorne Land Co. v. Occidental Chemical Corp.,

2004 WL 45524 (E.D. La. 01/06/04), aff’d, 431

FOO eek Te RATS COON oki cboeivcad Boe Fx passim

Hensgens v. Deere, 833 F.2d 1179 (Sth Cir. 1987),

appeal after remand, 869 F.2d 879 (Sth Cir. 1989),

reh’g denied, 875 F.2d 858 (Sth Cir. 1989), cert.

denied, 493 U.S. 851 (1989) ............ i ie nD

vi

Cited Authorities

In Re: Medical Review Panel of Howard, 573 So. 2d

ER oR) ER pea aap eare trae Die aig ar ar ear

In re Moses, 788 So. 2d 1173 (La. 2001) .........

Johnco v. Jameson Interests,741 So. 2d 867 (La. App.

3d Cir. 6/23/99), writ denied 750 So. 2d 183

ER RATE rs ks Grek ce ee ba ek cae ake oe

Jordan v. Employee Transfer Corp., 509 So. 2d 420

AI ee Nh a Oe Vie AER EV ETS CERO

Knaps v. B & B Chemical Co., 828 F.2d 1138

(Te Rally PEER Sais OD 5G ooh ah ee ees

Martin v. Schwing Lumber & Shingle Co., 81 So. 2d

Bee CE TO a kB Seed a Se

McGreggor v. Louisiana State University Bd. of

Supv’rs, 3 F.3d 850 (Sth Cir. 1993), cert. denied,

RR BETO 6 iv aie n ee bp 5 5o ao we Ree

Miller v. Seven Seas Properties, LLC, 800 So. 2d

406 (La. App 3d Cir. 11/21/01), writ denied 811

BEA PAs SINE boise sons bes COREE

Mississippi River Basin Alliance v. Westphal, 230

RGD Pep SN aE, GUD 5. oo ves i oa eg We KD

Nat’l Park Bank v. Concordia Land & Timber

Company, 105 So. 234 (La. 1925) ............

19-20

vil

Cited Authorities

Page

Quintanilla v. Texas Television, Inc., 139 F.3d 494

Cou Re Ss hk Pe Ona ee ee Bae oa 8

Riley Stoker Corp. yv. Fidelity Guaranty Ins.

Underwriters, Inc., 26 F.3d 581 (Sth Cir. 1994)

Ee ae Pn ee ee eee yee Ee 3 Oe Be

S&W Enterprises, LLC v. Southtrust Bank of

Alabama, NA, 315 F.3d 533 (Sth Cir. 2003) .... 17

Terrebonne Parish School Board v. Mobil Oil Corp.,

310 £34 $70 (Sth Cir. 2002) 2.5... ee es 17, 18, 21

Statutes and Rules:

eee Aki PAP PD os gk sy on Re ee se 3

Fes Wes GEV. aS RO oS one SAG Nee eae Pe €

PU Mes Sok WMO AM hs we Ka Rees een Skee 13, 15

Pe ier Rod eS BE i kee NS es eee 15

Ph Sec Ge IED sr ob ne eee wee 19

Pek Be RV: PO OU ia eae ee coe ed Fae RS 26

fi E35 h ha FS er er eee or eee err et ee oe 4

ens STR I 8 ea ova ein exe cae 4

Be ae ROTC CARI 05 5 een ip a ee 11

Vili

Cited Authorities

Page

La. Civit CopE ANN. art 496 (West, 2006) ........ 13

La. Civit CopE Ann. art 497 (West, 2006) ........ 13

La. Civ. Cope Ann. art. 800 (West, 2006) ..... a, 4 ao

La. Civ. Cope ANN. art. 802 (West, 2006) ........ 9

La. Civ. CoDE ANN. art. 806 (West, 2006) .. 5, 12, 13, 16

La. Civ. Cope ANN. art. 3492 (West, 2006) ....... 20

La. Civ. Cope ANN. art. 3493 (West, 2006) ....... 20

La. Civ. Cope ANN. art. 3499 (West, 2006) ....... 27

Other Authorities:

Gravois, The Revision of Louisiana Co-Ownership

Law, 65 Tul. L. Rev. 1261 (May, 1991) ........ 9

|

ADDITIONAL STATUTORY PROVISION INVOLVED

Federal Rules of Civil Procedure 16(b)

Rule 16. Pretrial Conferences; Scheduling; Management

(b) Scheduling and Planning. Except in

categories of actions exempted by district

court rule as inappropriate, the district judge,

or a magistrate judge when authorized by

district court rule, shall, after receiving the

report from the parties under Rule 26(f) or

after consulting with the attorneys for the

parties and any unrepresented parties by a

scheduling conference, telephone, mail, or

other suitable means, enter a scheduling order

that limits the time

(1) to join other parties and to amend

the pleadings;

(2) to file motions; and

(3) to complete discovery.

The scheduling order may also include

(4) modifications of the times for

disclosures under Rules 26(a) and

26(e)(1) and of the extent of

discovery to be permitted;

2

(5) the date or dates for conferences before

trial, a final pretrial conference, and

trial; and

(6) any other matters appropriate in the

circumstances of the case.

The order shall issue as soon as practicable but in

any event within 90 days after the appearance of

a defendant and within 120 days after the

complaint has been served on a defendant. A

schedule shall not be modified except upon a

showing of good cause and by leave of the district

judge or, when authorized by local rule, by a

magistrate judge.

SUMMARY OF THE REASONS TO

DENY THE PETITION

A writ of certiorari to review the November 15, 2005,

ruling of the U.S. Fifth Circuit Court of Appeal is not

warranted in this case, and the writ application should be

denied. The sole basis upon which review by this Court is

sought is the alleged misapplication of a properly stated rule

of law and erroneous findings of facts by the lower courts.

Such criteria are rarely considered appropriate for the exercise

of this Court’s authority. Petitioners argue that the lower

courts misapplied the law of joinder of necessary and

indispensable parties by proceeding in this matter without

joining a co-owner of immovable property as a party in this

proceeding which involves a claim for damages to jointly

owned property. Pet. at 6. The co-owner settled any potential

dispute with the defendants. Also, Petitioners contend the

circuit court was confused about the facts in granting a

3

summary dismissal of this action based on prescription.

Pet. at 13. Neither of these considerations demonstrates that

the Petition for Writ of Certiorari satisfies the criteria

governing review on certiorari. See Sup. Ct. R. 10 (a)-{c).

Accordingly, the Petition for Writ of Certiorari should be

denied.

STATEMENT OF THE CASE

Hawthorne Land Company, (“HLC’), The Hugh A.

Hawthorne Family Class Trust, Bank One Trust Company,

N.A., Trustee (“Hawthorne Family Class Trust” and

collectively, ““The Hawthornes”) and Nire Inc., (““Nire’’) are

all co-owners of immovable property, 17,350 acres south of

Donaldsonville, Louisiana, located in the swamps of St.

James and Assumption Parishes. This property is subject to

numerous right of way grants, one of which permits

Occidental Chemical Company (“Occidental”) to operate a

pipeline through the property to transport a concentrated

sodium chloride solution (“brine”), from the salt domes of

Grand Bayou, Louisiana, to Occidental’s distribution plant

some 42 miles away in Taft, Louisiana. This pipeline is

referred to as the Oxy-Taft pipeline.

Between 1985 and 1987, the Oxy-Taft pipeline developed

leaks. In February of 2001, Hawthorne Land Company

instituted this action in the 23” Judicial District Court for

the State of Louisiana claiming these leaks had caused

property damage. Hawthorne Land Company sought damages

from Occidental and the then operator of the pipeline, Texas

Brine Company, L.L.C., (formerly, Texas Brine Corporation),

along with a host of other entities involved in the repair of

the pipeline, seeking remediation and restoration of the

4

property.' Neither the Hawthorne Family Class Trust, nor

Nire, co-owners of the property was originally joined in this

action as party plaintiffs.

Occidental and Texas Brine removed this action to the

United States District Court for the Eastern District of

Louisiana, pursuant to 28 U.S.C. §§ 1441 and 1446, alleging

diversity of citizenship and the improper joinder of six other

defendants alleged to be Louisiana citizens. (R. Vol. 1,

p. OOOLOL). Leave to amend was granted ‘o join the

Hawthorne Family Class Trust as party plaintiff shortly after

institution of this action; however, no attempt was made to

1. The Hawthornes improperly joined several non-diverse

defendants in this action solely for the purpose of defeating diversity

jurisdiction. Claims against three of the six defendants were

dismissed either voluntarily by plaintiffs, or by operation of law.

(R. Vol. 1, p 69, Motion to Dismiss Woodson Construction Company;

R. Vol. 5, p. 001146, Motion to Dismiss Paul Lare d/b/a Paul Lane

Construction Co., and R. Vol . 5, p. 000982, Motion to Dismiss Marsh

Buggage Equipment).

The Hawthornes first Motion to Remand was denied because

the non-diverse defendants, in particular Cain’s Hydrostatic Testing,

Inc. (“Cain’s”) and Diamond Fabricators, Inc. (“Diamond’’), had been

improperly joincu, as the allegations in the petition established there

was no possibility of recovery against these non-diverse defendants

under state law. No facts had been alleged to support the tort claims

that the services rendered by these non-diverse defendants had been

negligently performed or resulted in harm. Furthermore, in piercing

the pleadings and conducting a summary inquiry, the district court

found the joinder of these non-diverse defendants was improper

because neither was an excavation contractor, as alleged, and neither

had any involvement with any alleged subsequent leaks or re-leaks,

as claimed.

=

join the other co-owner, Nire, Inc., in this amendment.

A Motion to Remand was denied, however.’

No attempt was made to join the other co-owner, Nire,

for more than one year after the proceeding had been

instituted. Nire’s joinder was eventually sought as plaintiff.

A corresponding Motion to Remand was also urged alleging

Nire’s joinder would destroy diversity. Before these motions

were heard, Nire settled any and all potential claims with

defendants; thus, it had no claim to assert as a plaintiff and

its joinder as such would have been futile. As a result, joinder

was denied.

In a last-ditch effort to defeat diversity, The Hawthornes

moved to have Nire joined as a defendant, urging that as a

result of the settlement, Nire should now be aligned with

defendants, since Nire’s consent to their remediation and

restoration plans for the property was refused. They further

urged a cause of action under Louisiana Civil Code arts. 800

and 806, asserting they had a right of reimbursement against

Nire for the costs of implementing their plans for the property.

The district court refused to grant leave to file this

amendment, noting that the claim for reimbursement was

premature under Louisiana Civil Code arts. 800 and 806 as

no reimbursable expenses had allegedly been incurred. The

district court held settling its claims did not necessitate Nire’s

joinder as a defendant in this action. Thus, the district court

2. The district court granted a Motion for Summary Judgment/

Motion to Dismiss Tassin International Ltd. and Diamond

Fabricators, Inc. (R. Vol. 10, p. 002413), and it also granted an

unopposed Motion for Summary Judgment dismissing Cain's

Hydrostatic Testing. (R. Vol. 7, p. 001472); these dismissals are not

before this Court.

6

denied The Hawthornes’ Motion for Leave to Supplement

and Amend their Petition to join Nire as a defendant and the

matter proceeded on the merits with the existing parties

before the court.

Subsequently, Occidental and Texas Brine sought

summary dismissal on the merits, based on prescription.

Occidental and Texas Brine offered a Statement of Thirty-

Eight Undisputed Facts, supported by affidavits, depositions,

answers to interrogatories and admissions that proved The

Hawthornes had constructive, if not actual, knowledge of

their cause of action more than ten years before institution

of the action.

The pipeline leaks in question occurred between 1°85

and 1987, but this action was not filed until 2001. The

Hawthornes alleged they had no knowledge of these leaks

until October 24, 2000, claiming prescription had been

suspended until then; however, in opposing the motion for

summary judgment, they produced no evidence to support

this date of first knowledge. Instead, The Hawthornes

submitted affidavits from two of the same witnesses whose

affidavits had been offered by Occidental and Texas Brine

and used to support the Motion for Summary Judgment in

an attempt to manufacture issues of fact. These second

affidavits did not contradict the genuine material facts, and

the lower court concluded, even considering those second

affidavits, Occidental and Texas Brine nevertheless

established that Petitioners had constructive notice of their

claims years before the alleged date of discovery, October

24, 2000, but failed to take action on that knowledge for 13

years, and they had failed to meet their burden of proving

that prescription had been suspended or interrupted.

Occidental and Texas Brine, on the other hand, had

7

affirmatively proved that the claims had prescribed. The

district court granted Occidental and Texas Brine’s Motion

for Summary Judgment and dismissed The Hawthornes

claims as prescribed. Hawthorne Land Company v.

Occidental Chemical Corp., 2004 WL 45524 (E.D. La.

01/06/04). The U. S. Fifth Circuit Court of Appeals affirmed

the rulings of the district court per curiam, which dismissed

this matter on a motion for summary judgment based on

prescription, and denied a petition for rehearing. Hawthorne

Land Co. v. Occidental Chemical Corporation, 2004WL

30137 (Sth Cir. 11/15/05); 431 F.3d 221.

REASONS FOR DENYING THE PETITION

Petitioners’ request for review is simply based on the

U.S. Fifth Circuit Court of Appeals alleged misapplication

of the law of joinder and alleged erroneous factual findings

affirming the district court’s grant of a motion for summary

judgment that dismissed this action as prescribed. The lower

courts properly applied the law and made no error in their

factual findings. The decisions below do not conflict with a

decision of this Court or any court of appeals on these issues.

No constitutional or federal questions are presented to this

Court in this petition. Thus, there is no need for the Court to

exercise its discretionary jurisdiction, and the petition should

be denied.

A. The Federal Circuit’s Decision Properly Applied the

Law Governing Amendment, Joinder and Remand.

The supervisory jurisdiction of this Court is not

warranted to review the denial of a motion to amend. The

issue before the lower courts was whether they should grant

an amendment that was only sought in order to add a co-

8

owner of immovable property as an involuntary plaintiff or

a defendant to an action for damage to the property, when

that co-owner had settled with defendants its potent.al claim

for damage to the property, and when the toinder of that co-

owner would tend to defeat diversity. The lower courts

rightfully rejected the motion to amend which sought the

joinder of this non-diverse party and the motion to remand.

Joinder of Nire Was Unnecessary for a Just Adjudication.

The U.S. Fifth Circuit Court of Appeals properly utilized

an abuse of discretion standard in reviewing the decision of

the district court which denied the motions to amend to join

a non-diverse party who had settled its claim against the

defendants. Quintanilla v. Texas Television, Inc., 139 F.3d

494, 499 (Sth Cir. 1998). When an amendment would be

futile, it is appropriate to deny it. Avatar Exploration, Inc. v.

Chevron USA, Inc., 933 F.2d 314, 321 (Sth Cir. 1991). Under

the circumstances, there was no abuse of discretion in

refusing to allow the amendment seeking joinder of Nire.

The Hawthornes are seeking damages from Occidental

and Texas Brine for inter alia the trespass of brine solution

into their property. The Hawthornes have asserted the lower

courts erred by proceeding in this matter without Nire’s

joinder, since Nire is a co-owner of the property. Nire is a

5% co-owner of the property, along with The Hawthornes

who jointly own the remaining 95% of the subject property.*

3. The only form of co-ownership recognized by Louisiana law

is co-ownership in division, which presumes equal shares of

ownership among the co-owners, unless provided for by law or other

juridical act. See La. Civ Cope ANN. art. 797 (West, 2006); See also

La. Civ. Cope Ann. art 480 (West, 2006).

9

Co-ownership in Louisiana is a form of individual

proprietorship in which each co-proprietor has a complete

and absolute right to an abstract portion of the entire thing

held in common; thus a co-owner owns the entire property

with his co-owners, but may freely use the property for any

purpose for which it is intended, so long as he does not

interfere with the right of the other co-owners to the same

enjoyment. See Gravois, The Revision of The Louisiana Co-

Ownership Law, 65 Tul. L. Rev. 1261, 1262 (May, 1991).

More importantly for purposes of this action, as against third

persons, a co-owner has the right to use and enjoy the thing

as if he were the sole owner. La. Civ. Cope Ann. art. 802

(West 2006). “For example, a co-owner alone may take all

the necessary steps for the preservation of the property,

including the institution of suits against trespassers or

usurpers.” See Comment, La. Civ. Cope Ann. art. 802 (West

2006).

While Petitioners have asserted that the lower courts

ignored the elephant in the room, in fact, it is Petitioners

who proceeded with blinders in the lower courts in their

efforts to defeat diversity and have this matter adjudicated

in state court. Petitioners have persistently ignored the fact

that the same provision which they cite in support of Nire’s

joinder and in affording them a cause of action for

reimbursement against Nire, Louisiana Civil Code article

802, also allows them (The Hawthornes) to proceed in an

action for trespass against third parties without the joinder

of all co-owners.

In the district court, The Hawthornes twice tried to amend

seeking only to join Nire, first as an involuntary plaintiff in

their second motion to amend, then after Nire’s settlement,

10

as a defendant in their fourth motion to amend.‘ Incredibly,

instead of dismissing their amendment which sought to join

Nire as a party plaintiff as moot, upon learning of Nire’s

settlement, The Hawthornes persisted in seeking Nire’s

joinder, demonstrating the extent to which The Hawthornes

would go in order to attempt to manipulate the jurisdiction

of the court. Undeterred by the facts and the law, The

Hawthornes conjured up an argument that as a result of the

settlement, Nire was now aligned with the defendants and,

further, Nire should be joined as a defendant in order for

them to obtain complete relief, which would include payment

by Nire of its portion of the costs of restoration and

remediation of the subject property that they hoped would

be awarded at the conclusion of this litigation.

The lower courts rejected this transparent argument,

finding joinder of Nire was moot since it had settled and the

law upon which they had based their claim for reimbursement

was inapplicable since The Hawthornes had not expended

any funds to be reimbursed. The district court refused to grant

leave to amend to join Nire, and instead, permitted the matter

to proceed on the merits with the parties before the court.

4. The Fifth Circuit’s opinion properly noted that The

Hawthornes did not distinguish between these two attempts to amend

_ to join Nire, although they are different and entail different analyses.

1]

The Proposed Amendment To Join Nire Was

Properly Subjected To a Heightened Scrutiny,

Since The Proposed Amendment Would

Have Destroyed Diversity.

The granting of leave to file a post-removal amendment

that would tend to defeat diversity is within the district court’s

discretion and such a proposed amendment is scrutinized

more closely than an ordinary amendment. 28 U.S.C.

§ 1447(e). See, Hensgens v. Deere, 833 F.2d 1179, 1182 (Sth

Cir. 1987), appeal after remand, 869 F.2d 879 (Sth Cir. 1989),

reh’g denied, 875 F.2d 858 (Sth Cir. 1989), cert. denied, 493

U.S. 851 (1989). Both of the Hawthornes’ motions to amend

were filed post-removal and were filed in conjunction with

a motion to remand alleging Nire’s joinder would defeat

diversity. Accordingly, both motions fall squarely within the

framework of a Hensgens analysis. The first factor that the

district court must consider when faced with such a proposed

amendment is to determine whether the party seeking leave

to amend has been dilatory in asking for the amendment.

Hensgens, supra. The Fifth Circuit held that:

The denial of leave to. amend is not an abuse of

discretion if there had been ‘undue delay, bad

faith or dilatory motive on the part of the movant,

ipeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amend, [or]

futility of the amendment.’

Riley Stoker Corp. v. Fidelity Guaranty Ins. Underwriters,

Inc., 26 F.3d 581, 91-592 (Sth Cir. 1994), citing Foman v.

Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d

222 (1962).

12

Petitioners raised a smokescreen claiming Occidental and

Texas Brine were attempting to manipulate the district court’s

jurisdiction by settling with Nire in an effort to prevent its

joinder after the Motion to Amend seeking Nire’s joinder

had been filed. Surely at the time of institution of this action

in 2001, HLC knew that it owned the subject property in

indivision with two others, yet joinder of these two co-owners

was not even sought until prompted by the defendants’ answer

which raised non-joinder some six months after filing this

action. HLC did not seek to amend to add Nire when it sought

leave to amend to join its other co-owner, The Hawthorne

Family Class Trust, claiming Nire refused to join as plaintiff,

and it did not seek then to join Nire as an involuntary plaintiff.

Instead, HLC delayed any attempt to amend to join Nire for

another six months, nearly one year after institution of the

action, and only did so after it had tried unsuccessfully to

have the matter remanded.

Suggestions that Occidental and Texas Brine attempted

to manipulate the jurisdiction of the court by settling with

Nire are incredulous, especially given the timing of the

amendments seeking to joining Nire and the circular

arguments offered to the lower courts by The Hawthornes in

favor of Nire’s joinder. Nire had nc interest in being a

participant in this litigation, and thus, it is not beyond the

realm of reasonableness for Nire to agree to a monetary

release of their claims.

Complete relief available without joinder

Assuming The Hawthornes had expended monies (which

they had not) to have their proposed remediation plan for

the property performed, then pursuant to Louisiana Civil

Code articles 800, 806 and arguably 804, they would have a

right of action to seek reimbursement. Article 800 allows a

13

co-owner to take steps to preserve a thing without the

concurrence of a co-owner. La. Civ. CoDE ANN. art. 800

(West, 2006). Expenses for maintenance and management

of a thing held indivision are reimburseable, pursuant to

article 806. La. Civ. Cope Ann. art. 806 (West, 2006). The

Hawthorne’s proposed remediation and restoration plan for

the property tends to fall within the ambit of Louisiana Civil

Code article 804, governing substantial alterations and

improvements, which provides when such acts are undertaken

with consent of the co-owner, the rights of the parties are

governed by Louisiana Civil Code article 496. And, if the

proposed repairs had been done without Nire’s consent, then

article 497 governs; it allows for reimbursement of either

the increased value of the thing or payment of the

improvements if done in good faith, or the right to demand

removal and demolition plus damage to the immovable, if

done in bad faith. La. Civ. Cope ANN. art. 804 (West, 1990).

Either way, Nire’s joinder is not necessary.

The lower courts agreed that joinder of Nire as a

defendant was not necessary to afford the parties complete

relief. Hawthorne Land v. Occidental Chemical Corp. 431

F.3d 221, 226 (Sth Cir. 2006). Nire’s setthement with the

defendants did not affect any potential recovery by plaintiffs,

which would remain at 95%. The Hawthornes arguinent for

reimbursement from Nire under Louisiana Civil Code article

800 for expenses incurred in the maintenance of the property

was rejected as both speculative and premature. /d. The Fifth

Circuit recognized that while The Hawthornes might have

had a declaratory relief claim against Nire for contributing

to the costs of related to the land if necessary, “such a claim

(is) so tangential to the main issue in the case (it) is

insufficient to make a party necessary under Rule 19.”

Id. at 226-227.

14

In citing to Miller v. Seven Seas Properties, LLC, 800

So. 2d 406 (La. App 3 Cir. 11/21/01), writ denied, 811 So.

2d 878 (La. 3/8/02), The Hawthornes overlooked the fact

Miller, supra, was brought as a declaratory judgment action

between co-owners of immovable property seeking the

reimbursement of monies already expended for what one co-

owner had deemed were necessary expenses. Pet. at 8. The

other co-owner defendant in Miller denied the necessity of

the proposed repairs; but the court found there was a

sufficient justiciable controversy between the parties to this

declaratory action to allow it to proceed. Here, no such

controversy is in contention since there had been no expense

incurred to be declared reimburseable, and as properly noted

by the Fifth Circuit, there is no evidence that Nire has refused

to contribute to the cost related to the land, if necessary.

Hawthorne Land, 431 F.3d at 226. And, the Fifth Circuit

observed regardless of the settlement amount, the possibility

exists for Nire not contributing toward the reclamation of

the property. /d. at n.9.

Likewise, the other two cases cited by The Hawthornes,

Johnco v. Jameson Interests, 741 So. 2d 867 (La. App. 3 Cir

6/23/99) writ denied 750 So. 2d 183 (La. 11/5/99), and

Broussard v. Columbia Gulf Transmission Co., 398 F.2d 885

(Sth Cir. 1968), are also distinguishable. Pet. at 10, 11. In

Johnco, supra, the parties were not co-owners of the property,

despite their co-ownership of the property’s mineral rights,

since they owned separate parcels of the property in question.

Broussard, supra, did not involve an attempt to amend to

“add” a party post-removal. Nire’s joinder was not only

sought post-removal to assert a claim for damages to the

property, but after Nire had released any and all potential

claims for these damages against the Defendants, with

prejudice.

15

The second Hensgens, supra criteria requires the district

court to consider whether any significant injury or prejudice

would result from denial of the amendment. Nire settled its

claim, so there could be no injury in denying the amendment

which sought to join Nire as a plaintiff, as the lower courts

determined; joinder in such an instance would have been

futile. Riley Stoker, supra.

After this poorly veiled attempt to defeat diversity was

given the full scrutiny warranted under Hensgen, supra, the

district court rejected this argument and refused to allow this

latest amendment. In reaching this conclusion, the lower court

observed the co-owner’s settlement had eliminated the need

to be joined as a party plaintiff and the Hawthornes would

be entitled to their full relief from the defendants without

the joinder of their co-owner. The Hawthornes’ cause of

action against their co-owner was one for reimbursement,

and in this case there had beer no expenses incurred; thus,

that claim was speculative. Accordingly, the magistrate and

the district court appropriately determined that the Nire was

not a necessary party to this proceeding in any capacity. The

Fifth Circuit saw through the argument as well, commenting,

“the manifest purpose of the plaintiffs’ actions was to defeat

federal jurisdiction”. Hawthorne Land 431 F.3d at 227.

Rule 19 of the Federal Rules of Civil Procedure governs

the joinder of persons in a lawsuit in order for a fair decision

to result. Fep. R. Civ. Proc. 19. This rule provides guidance

to the court for the joinder of parties who will not deprive

the court of jurisdiction, if the party’s joinder is necessary

for a just adjudication and factors for consideration if the

joinder is not feasible. Jd. Rule 19(b) also gives the district

court the discretion to determine whether to proceed with an

action lacking a necessary party, A court must consider the

16

prejudice of proceeding with the parties present lacking the

necessary party’s presence and the prejudicial effect it may

have on the outcome of the proceedings. After considering

such, it determines if the matter can proceed absent the

necessary party, or it can dismiss the action entirely. The

lower courts carefully evaluated each of the considerations

set forth in Rule 19, then allowed the matter to proceed

without Nire whose joinder was not feasible.

For Petitioners to contend that Nire should have been

made a defendant simply because it had settled any claims it

may have had with respect to this alleged property damage

is ridiculous. The Hawthornes’ attempt to join Nire as a

defendant is no different than HLC seeking to name

Hawthorne Family Class Trust as a defendant on the

anticipatory basis that at some future point in time the

Hawthorne Family Class Trust might not pay its proportionate

share of any expenses allegedly owed under articles 800 and

806.

In urging the necessity of Nire’s joinder, Petitioners have

ignored key distinctions between their claim against the co-

owner of this property and those asserted in law and the

jurisprudence that they cite in support of their position that

they somehow would not be able to obtain complete relief

absent Nire’s joinder as a defendant. Pet. at 9. Louisiana Civil

Code article 806 provides a right of action for reimbursement

to a co-owner who incurs necessary expenses for the

maintenance or repair of property owned in indivision.

Petitioners do own the property in indivision with the settling

co-owner, but they have not spent a single cent remediating

this property.

° 17

The Hawthornes were dilatory in seeking the fourth post-

removal amendment which sought joinder of Nire as a

defendant, based on the same key facts and issues as had

been previously considered by the lower court and rejected

in their second motion to amend. The circuit court

commented that “the plaintiffs have not demonstrated why

this legal theory (offered in seeking the fourth post-removal

amendment) was not available (during the second motion)

or why it could not have been anticipated at that time,” relying

on the factors set forth in S&W Enterprises, LLC v. Southtrust

Bank of Alabama, NA, 315 F.3d 533, 536 (Sth Cir. 2003) and

Fed. R. Civ. Proc. Rule 16(b). Hawthorne Land, at 431 F.3d

at 228. The decision to not allow the amendment seeking to

add a new, non-diverse defendant in a declaratory judgment

action, two months before trial on the merits of a matter that

had proceeded in the federal forum for more than two years,

was not an abuse of discretion. See Hensgens, supra; Riley

Stoker, supra. For these reasons, granting a writ of certiorari

to review the decision of the lower courts denying the motion

for leave to amend to join Nire does not justify further review

of this Court.

B. The Federal Circuit Properly Read and Applied the

Law Applicable to the Granting of the Motion for

Summary Judgment Based on Prescription.

It is well-established that the party pleading prescription

bears the burden of proof, but once it is shown that more

than a year has elapsed between the tortious conduct and the

filing of the tort suit, the burden then shifts to the plaintiff to

prove interruption, suspension or some other exception to

prescription, such as contra non valentem or the theory of

continuing tort. Terrebonne Parish School Board v. Mobil

Oil Corp., 310 F.3d 870, 877 (Sth Cir. 2002); In re Moses,

18

788 So. 2d 1173 (La. 5/25/01). Clearly more than one year

has elapsed between the time of the alleged tortious conduct

in 1985-1987 and the institution of this action in February,

2001. The Louisiana Supreme Court recognized in Moses,

supra, when the face of the petition reveals that the plaintiff’ s

claim has prescribed, the burden shifts to the plaintiff to

demonstrate prescription was suspended or interrupted:

Given the procedural posture of this case, we

resolve the issue of the placement of the burden

of proof based on a logical application of the

general principle that the party asserting a

suspension or interruption of prescription bears

the burden. Since the party asserting a suspension

is plaintiff, logic dictates that plaintiff will have

the burden of proof.

Id. at 1177-78. It was undisputed that the state court Petition

alleged the tortious conduct occurred more than one year prior

to institution of this action; thus, the burden of proving

interruption or suspension of prescription was on The

Hawthornes. Mobil Oil, supra; Moses, supra.

In an attempt to revive this prescribed claim, The

Hawthornes alleged in their initial pleading that they had no

knowledge of these leaks until October 24, 2000. (R. Vol.

28, p. 007277, para. 81). As the party asserting suspension

or interruption of prescription, The Hawthornes had the

burden of proof with regard to overcoming the prima facie

defense. Mobil Oil, supra at 877. Their unsupported

statement of lack of knowledge until this date failed to meet

their burden and neither contra non valentem, nor reliance

on the continuing tort theory could save this claim from

dismissal as prescribed.

19

In moving for a summary judgment in this matter,

Occidental and Texas Brine’s Motion for Summary Judgment

Based on Prescription of both the tort and alleged contract

claims was supported with a host of evidence, including

affidavits from two former property managers for the Trustee.

Affidavits and deposition testimony of numerous other

witnesses who were intimately involved in the management

of the property, along with The Hawthornes’ own discovery

responses, were also offered in support of the Statement of

Undisputed Facts to prove The Hawthornes had at the very

least constructive knowledge, if not actual knowledge, more

than 10 years prior to either the date of filing of this claim or

well before the claimed date of discovery, October 24, 2000.

The burden then shifted to The Hawthornes to somehow

prove an interruption or suspension of the running of

prescription until October 24, 2000. None of the evidence

offered in opposing the defendants’ Motion for Summary

Judgment Based on Prescription established this date,

October 24, 2000, as the date of first knowledge of the claim;

in fact, no evidence offered even mentioned this date. Simply,

the Hawthornes failed to carry this burden - the motion for

summary judgment was granted, and rightly so.

Summary judgment is proper if, after taking all

inferences most favorable to the non-moving party, there is

no genuine issue of material fact, and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Arguello v. Conoco, Inc., 207 F.3d 803, 807 (Sth Cir. 2000),

cert. denied, Escobedo v. Conoco, Inc. 531 U.S. 814, 121

S. Ct. 177, 148 L. Ed. 2d 121, 69 USLW 3086 (U.S. Oct. 2,

2002) No. 00-55). The circuit court properly reviewed the

grant of summary judgment de novo, applying the same

standard as the district court. Arguello, supra; Mississippi

River Basin Alliance v. Westphal, 230 F.3d 170, 173 (Sth

20

Cir. 2000). The Fifth Circuit’s de novo review of the record

revealed that there was no genuine issue of material fact that

the Petitioners’ had at least constructive notice of their claim

long before they instituted this proceeding, and a 13 year

delay in proceeding was unreasonable; thus it determined

the matter was prescribed. Hawthorne Land Company v.

Occidental Chemical Corp., 2004 WL 30137 (Sth Cir.

11/15/05) 431 F.3d 221. Accordingly, no compelling reason

exists for this Court’s review of the Fifth Circuit’s opinion.

The Hawthornes failed to carry their burden in

opposing the motion for summary judgment to

prove that prescription on this 13 year old claim

had been interrupted or otherwise suspended

until October 24, 2000, as alleged.

This action was filed in February, 2001, for damage due

to leaks that allegedly occurred between in 1985 and 1987.

(R. Vol. 28, p. 007257). Ordinary delictual actions are subject

to a liberative prescription period of one year from the date

the damage is sustained. La. Civ. Cope ANN. art. 3492 (West,

2006). But, in the case of damage to immovable property,

the one year prescriptive period commences to run from the

day the owner of the immovable acquired or should have

acquired knowledge of the damage. La. Civ. CopE ANN.

art. 3493 (West, 2006).

Clearly more than one year has elapsed between the time

of the leaks, the alleged tortious conduct, which occurred in

1985-1987, and the commencement of this action in February,

2001. The Hawthornes alleged that they did not acquire

knowledge of the damage until October, 2000, in an attempt

to suspend the running of prescription. As the party asserting

suspension or interruption of prescription, The Hawthornes

21

———_ had the burden of proof with regard to overcoming the prima

facie defense. Mobil Oil, supra at 877. In opposing the motion

for summary judgment, the lower courts only had The

Hawthornes’ unsupported statement of lack of knowledge

until this October 24, 2000 date. Simply put, The Hawthornes

just failed to meet their burden.

Prescription is deemed to begin running when it can be

objectively determined that in the exercise of reasonable

diligence, a reasonably minded plaintiff would have been

aware of the possibility that his damages could have been

caused by another. See, e.g., Cordova v. Hartford Accident

& Indemnity Company, 387 So. 2d 574, 577 (La. 1980);

Jordan v. Employee Transfer Corp., 509 So. 2d 420, 423

(La. 1987). The Hawthornes’ reliance on contra non valentem

to interrupt prescription was misplaced, as this doctrine

recognizes the judicial exception to the statutory rule of

prescription only in limited circumstances and extends up to

“the time the plaintiff has actual or constructive knowledge

of the tortious act.” Bergeron v. Pan American Assurance

Co., 731 So. 2d 1037, 1042 (La. App. 4 Cir. 1999). The focus

under the doctrine of contra non valentem is not on what did

the defendants do, but at what point in time did the plaintiff

have sufficient information to excite attention and prompt

further inquiry. /d.; McGreggor v. Louisiana State University

Bd. of Supv’rs, 3 F.3d 850, 865 (Sth Cir. 1993); see also

Eldredge v. Martin Marietta Corp., 207 F.3d 737 (Sth Cir.

2000); Curtis v. City of New Orleans, 2000 WL557399 (E.D.

La.) As a judicial exception to the statutory rule of

prescription, Louisiana courts strictly construe this doctrine

and only extend its benefits up to “the time that the plaintiff

has actual or constructive knowledge of the tortious act.”

Eldredge, 207 F.3d at 743.

22

The Hawthornes did not file this claim until 2001, for

damages from pipeline leaks occurring between 1985-1987.

Thus, the critical question to be determined is, was it

reasonable for these plaintiffs to take no further action in

defense of their property rights for 13 years in the face of

actual or constructive knowledge that this pipeline had not

only leaked, but that a 2-1/2 mile section of this brine pipeline

that traverses their property had to be replaced due to leaks?

In determining the reasonableness of the plaintiffs’

inaction, this Court has recognized that “[t]he educational

status and mental sophistication” of a plaintiff is relevant to

assessing whether a plaintiff:acts reasonably in delaying the

filing of a tort action.” See, e.g., Ducre v. Mine Safety

Appliances, 963 F.2d 757, 761 (Sth Cir. 1992); Knaps v. B &

B Chemical Co., 828 F.2d 1138 (Sth Cir. 1987). The

Hawthornes relied on land management professionals to

manage the property and advise them; in fact, both HLC and

the Trust had an agency relationship with Bank One Trust

Company, NA to manage the property. The knowledge of

these professionals is imputed to the owners. Constructive

notice, as well as actual knowledge, imputed to an officer or

agent of a corporation, is binding on the corporation.

See Martin v. Schwing Lumber & Shingle Co., 81 So. 2d 852

(La. 1955); Nat’l Park Bank v. Concordia Land & Timber

Company, 105 So. 234 (La. 1925); Coryell v. Phipps, 317

U.S. 406, 63 S. Ct. 291, 87 L. Ed. 363 (1943).

To the extent that the presence of brine caused “damage”

to The Hawthornes’ property, (which is denied), a reasonably

diligent landowner should have known of the events

complained of in their state court Petition. Occidental and

Texas Brine came forward with more than sufficient evidence

to show that The Hawthornes had actual knowledge of

23

pipeline leaks on the property 10 years before this action

was instituted, yet failed to take any further action based on

this knowledge. Such inaction was unreasonable. There were

various repairs to the pipeline performed on the Trust

Property, including the replacement of entire sections of the

pipeline on the Trust Property. All of the owners were aware

of the repairs made to the leaking pipeline, including the

replacement of a section of pipeline. In addition, there were

the observations and communications by and between the

owners, their agents, attorneys, trust administrators, property

managers, officers, lessees and managerial employees about

the leaks and these repair activities.

The evidence in this record demonstrates that The

Hawthornes were aware of the servitude grant for the

pipeline, and they also knew of the replacement of that

pipeline, and yet still they persist in arguing there was no

evidence that they had knowledge of their damage from the

pipeline leaks for 13 years. The Louisiana Supreme Court

made clear in Guitreau v. Kucharchuk, 763 So. 2d 575, 576

(La. 2000), “ignorance of the probable extent of injuries

materially differs from ignorance of actual harm, which

delays commencement of prescription.” Occidental and Texas

Brine proved, without question, that brine pipeline leaks and

resulting damages were both “knowable” and “known” to

The Hawthornes, by virtue of communications with the

property managers and the Hawthornes’ attorney who

investigated the reports of leaks and made claims in response,

and from numerous other sources. See, e.g., Derrick v.

Yamaha Power Sports, 850 So. 2d 829 (La. App. 5th Cir.

1993) (cause of action became reasonably knowable at the

time legal counsel was sought). Occidental and Texas Brine

submitted affidavits and/or deposition testimony from many

of the property managers and trust officers of Bank One who

24

were involved with the day-to-day management of this

property, as well as answers from The Hawthornes to

interrogatories in which these witnesses had been identified.

In response to an interrogatory as to when it first became

aware of each incident and/or leak that damaged the property,

The Hawthornes identified attorney, Taylor Caffery, as its

source of information. (R. Vol. 20, p. 005225-005228). In

response to interrogatories propounded by Texas Brine, HLC

identified Cliff LeBlanc, a property manager and several

Bank One employees who were property managers or who

were involved in the management of the property over the

years, Peggy Scott, Cliff LeBlanc, John Cannizaro, R. Mike

Lansford and Chris Fatzer, as persons who would have full

knowledge of the leaks, damage and extent thereof in the

late 1980's (R. Vol. 20, p. 005223-005224).

Thus, whether the district court incorrectly believed that

Caffery represented both HLC and The Trust is of no moment,

because it found two other witnesses, Peggy Scott and Cliff

LeBlanc, in their capacities as property managers had a “duty

to assess the risks of the various enterprises; and inspect the

property, for further action or whether more intensive

investigation was required.” (R. Vol. 40, 10687-91). See, e.g.,

Blackwell v. Bossier Parish School Board, 747 So. 2d 1248

(La. App. 2d Cir. 1999) (Property owners have a duty to

inspect their property and to discover defects). At the very

least, The Hawthornes inaction in not pursuing their claim

until some thirteen years after obtaining constructive

knowledge was not reasonable. See In Re: Medical Review

Panel of Howard, 573 So. 2d 472, 474 (La. 1991)

(Prescription does not run against one who is ignorant of the

facts upon which his cause of action is based, as long as

such ignorance is not willful, negligent or unreasonable). And

consequently, the district court properly determined that The

25

Hawthornes, despite being advised on numerous occasions

of leaks on their property from the Oxy-Taft pipeline, by

various sources, including their own lessee, agents, attorney,

employees, etc., as well as of the resulting damage, did

absolutely nothing to assert their claim for some 13 years.

This was unreasonable. Hawthorne Land, 2004 WL 45524.

Although the Hawthornes claimed to have had no

knowledge of the subject leaks until October 24, 2000, not

once in their opposition did they offer the district court any

explanation as to what occurred on this date to trigger the

running of prescription, which they claim had been in

suspension since the mid-1980s due to their lack of

knowledge. Not one shred of evidence was offered to show

that prescription began to run on this date, as opposed to any

date before October 24, 2000.

In an attempt to “create” an issue of fact, The Hawthornes

relied on a second set of affidavits from two of the same

witnesses whose original affidavits were offered in support

of the Motion by Occidental and Texas Brine. Despite their

intent, these affidavits failed to establish the existence of

genuine issues of “material fact”, that The Hawthornes did

not have at least constructive knowledge of their claim at

least 10 years before one year of filing this action. The second

set of affidavits did not provide any explanation as to why

they were necessary, nor did they contradict the original

affidavits regarding any material issues of genuine fact for

their necessity. See Albertson v. T.J. Stevenson & Co., 749

F.2d 223 (Sth Cir. 1984); Copeland v. Wasserstein, Perella

& Co., 278 F.3d 472 (Sth Cir. 2002). The Hawthornes argued

to the Fifth Circuit that these witnesses, Peggy Scott and

Cliff LeBlanc were “provided only a limited set of historical

‘documents by defendants when their initial affidavits were

26

obtained,” but “were not provided all of the pertinent

documents produced by Bank One in discovery that would

have refreshed their memory on the subject.” See Appellants’

Brief, p. 30; but these explanations were those of counsel;

not the affiants. Neither affiant offered any such explanation

in their affidavit, nor did they reference or even acknowledge

any of the documents, which counsel (not the affiants),

attached to their second affidavits offered by The Hawthornes

in Opposition to the motion for summary judgment, as

required by Fed. R. Civ. Proc. 56 (e). (R. Vol. 28, p. 007266;

R. Vol. 34, p. 008892).

Petitioners argue that both lower courts failed to view

all inferences in their favor as the non-moving party, noting

that these second affidavits from Scott and LeBlanc

contradicted statements made in the affidavits of these same

witnesses offered in support of the motion for summary

judgment. Pet. at 15. The district court concluded that

“regardless of the admissibility of the second affidavits from

Scott and LeBlanc, their constructive knowledge of the leaks

is indisputable.” Hawthorne Land Company vy. Occidental

Chemical Corp., 2004 WL 45524 (01/06/04), p. 2. After

conducting a de novo review of the record and considering

all of the evidence in a light most favorable to the non-moving

party, the district court determined that The Hawthornes had

not demonstrated the existence of genuine issues of material

fact warranting the trial of this matter.

The Fifth Circuit affirmed the grant of the motion for

summary judgment, noting in particular, “Like the district

court, we do not decide whether the affidavits should be

considered because we affirm that court’s judgment that even

if they are considered, summary judgment for the defendants

is proper.” Hawthorne Land Company v. Occidental, 2004

27

WL30137 (Sth Cir. 11/15/05), 431 F.3d 221, 228 n.20. This

statement reflects that both the district court and the Fifth

Circuit determined that the statements made by these two

witnesses in their second affidavits were not conflicting on

material issues of fact. Despite the attempt to manufacture a

conflict by submitting the second set of affidavits, the lower

courts concluded even considering these affidavits, the grant

of the motion for summary judgment was appropriate as this

matter had prescribed. /d.

The Grant of a Motion for Summary Judgment also

properly dismissed the Contract Claim as prescribed,

although it is denied, The Hawthornes even had

such a claim.

The 1965 Right-of-Way grant between the ancestors in

title of The Hawthornes and Nire is the only possible basis

for claiming a contract claim in this matter. (R. Vol. 28,

pp. 007359-007365). This Right of Way agreement allowed

for the installation, operation and repair of the pipeline;

however, this Right of Way grant is silent on any obligation

to remediate or restore the Trust property in event of any

damage to the Trust property as a result of the operation of

the pipeline. Thus, Occidental and Texas Brine dispute that

there ever existed a contract claim in this matter. However,

even if The Hawthornes had a contract claim, it has

prescribed. The prescriptive period applicable to an action

alleging breach of contract is ten (10) years from the date of

breach. La. Civ. Cope Ann. art. 3499 (West, 2006). In the

instant matter, the alleged breach of contract occurred more

than ten years before this suit was filed in February, 2001;

thus, any contract claim is likewise prescribed.

28

For these reasons, the decision of the U. S. Fifth Circuit

Court of Appeal to affirm the dismissal of this action pursuant

to Occidental and Texas Brine’s Motion for Summary .

Judgment Based on Prescription was proper. Petitioners’

assignment of error does not justify further review by this

Court.

CONCLUSION ;

For the foregoing reasons, Respondents, Occidental

Chemical Corporation and Texas Brine Company, LLC.,

request that the Petition for Writ of Certiorari of Petitioners,

Hawthorne Land Company and The Hawthorne A. Hawthorne

Family Class Trust, Bank One Trust Company, N.A., Trustee,

be denied.

Respectfully submitted,

RENE A. Curry, JR.

Counsel of Record

CHRISTOFFER FRIEND

TERESE M. BENNETT

Curry & Frienp, APLC

Whitney Bank Building, Suite 1200

228 St. Charles Avenue

New Orleans, Louisiana 70130

(504) 524-8556

Attorneys for Respondents