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Cibilic v. Cox Operating, L.L.C.

Court of Appeals of Louisiana, Fourth Circuit

June 6, 2018

PERO CIBILIC AND MARY ANN CIBILIC
v.
COX OPERATING, L.L.C.

          APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 2013-00591, DIVISION "C" Honorable Kim C. Jones, Judge President

          ROBERT C. CLOWORTHY CHRISTOPHER M. HANNAN DANIEL J. DYSART ROY C. CHEATWOOD BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, COUNSEL FOR DEFENDANT/APPELLANT

          STEPHEN SKELLY KRELLER KATIE M. CUSIMANO THE KRELLER LAW FIRM New Orleans, Louisiana 70130 -and-JONATHAN W. DETTMANN CRAIG S. COLEMAN EVIE LEVINE Faegre Baker Daniels LLP COUNSEL FOR PLAINTIFFS/APPELLEES

          Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Regina Bartholomew Woods

          JAMES F. MCKAY III, CHIEF JUDGE

         In this appeal, involving alleged damage to oyster leases, the defendant, Cox Operating, LLC, appeals the trial court's judgment finding it liable for damages to oyster leases held by the plaintiffs, Pero and Mary Ann Cibilic, and awarding the plaintiffs' damages. For the reasons that follow, we affirm the trial court's judgment as amended.

         FACTS AND PROCEDURAL HISTORY

         Pero and Mary Ann Cibilic hold oyster leases located in Lake Eloi in St. Bernard Parish. Specifically, Mr. Cibilic owns oyster lease 33311-08 and Mrs. Cibilic owns oyster lease 33935-09. These leases are located in about six to ten feet of water and their bottoms consist mainly of productive oyster reef.

         In 2011, Mr. and Mrs. Cibilic made a significant investment to purchase, transport, and spread hundreds of tons of cultch (limestone or concrete forming the substrate for oyster cultivation) onto their leases. Mr. and Mrs. Cibilic made this investment because of the scarcity of oysters after the BP oil spill and the increase of oyster prices by double or even triple of what they had been in the past. By early 2012, Mr. and Mrs. Cibilic had a healthy crop of oysters on their leases.

         In May of 2012, Cox began a project to re-enter one of its old wells located adjacent to the Cibilic's oyster leases. This well, known as Cox well number 13, had been plugged and abandoned. The well was located in nine to ten feet of water with a bottom of fine sediment. Re-entry required Cox to tow a 205-by-50-foot barge, topped by a 142-foot-tall drilling derrick, to the well site using several tugboats. The rig remained at the well site until June 27, 2012, and there was daily vessel traffic to the rig. Cox gave no advance notice of the re-entry project to any oyster leaseholders in the vicinity of the project.

         In order to access the well, vessels had to approach the well from the south and cross directly over Mrs. Cibilic's lease. The route required a sharp right-handed turn, just east of Mr. Cibilic's lease. The turn required vessels to power down and back up, with their propellers (props) directing prop wash towards Mr. Cibilic lease and causing sedimentation on the leases, damaging the oyster beds.

         Mr. and Mrs. Cibilic filed suit against Cox, claiming that Cox damaged their oyster leases and oysters while Cox was working on the aforementioned re-entry project on well number 13. At trial, Mr. and Mrs. Cibilic presented the witness testimony of Mr. Cibilic, Nikola Vekic (a neighboring oyster leaseholder), and Farrell Schexnayder (a Cox tugboat contractor). They all testified that they observed Cox vessels engaging in propeller washing which displaced the sediment on the water bottoms. The plaintiffs' expert witness, oyster biologist, Dr. Ed Cake, also testified regarding damages and causation.

         Cox did not present any witnesses who were present in the field during the project. Its witnesses consisted of its president and chief operating officer Rodney Dykes, its permitting agent Kasey Hebert, and Jakov Jurisic (whose wife owns the oyster lease where Cox's well is located). The defendant also called Gabe Johnson, an oyster biologist, as an expert witness.

         Following a three-day bench trial, the trial court issued a judgment in favor of Mr. and Mrs. Cibilic along with reasons for judgment. The trial court held that Cox negligently damaged the plaintiffs' leases and buried their oysters. The court entered judgment in favor of Mr. and Mrs. Cibilic for ...


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