MILLER LLC v. TENNESSEE GAS TRANSMISSION COMPANY (2026)

This consolidated appeal involves a Right of Way Agreement (hereafter ROW Agreement) confected in 1957 over certain land located in Cameron Parish, Louisiana, for the purpose of building a pipeline to transport natural gas. The relevant parties in this appeal are as follows:

Dr. M.O. Miller - the owner of the land at issue when he entered into the ROW Agreement in 1957 with Tennessee Gas Transmission Company. Dr. Miller died in 1974 and the land at issue was inherited by his children.

Tennessee Gas Transmission Co./Tennessee Gas Pipeline Co. – Tennessee Gas Transmission Company entered into the ROW Agreement in 1957 with Dr. Miller to build a pipeline to transport oil, gas, and petroleum products across the property. It later became Tennessee Gas Pipeline Company (hereafter TGP).

Kinetica Partners LLC – In 2013 purchased the ROW Agreement and the pipeline from TGP. After the purchase, Kinetica Energy Express, LLC owned the pipeline in the canal; Kinetica Partners LLC (who is the parent company of Kinetica Energy Express) owned the ROW (hereafter referred to as Kinetica).

P&A Miller, LLC - A Louisiana limited liability company and co-owner of the property at issue. The LLC acquired its interest in the property through an Act of Donation dated December 29, 2012, from Pierre Valcour Miller, who gained his interest in the property after the death of Dr. Miller. The managers of P&A Miller are Pierre Valcour Miller and his wife, Adrienne Miller. It filed suit against TGP and Kinetica for breach of the 1957 ROW Agreement in 2014.

The Seven C's Plaintiffs – A collection of Louisiana limited liability companies formed by several of Dr. Miller's heirs (collectively the Seven C's Plaintiffs), which were co-owners of the property at issue. Edna K. Miller, Dr. Miller's wife, donated her 1/212 interest in the community property to each of her eight children (one of whom was the above Pierre Valcour Miller), who also inherited Dr. Miller's interest in the property through his succession. Then, in the late 1990s and early 2000s, the children transferred these inherited interests to LLCs. These included Seven C's Properties, L.L.C., which acquired its interest in the property by an Act of Exchange dated February 1, 1999 between Mary Lynn Miller Currier and Seven C's Properties, L.L.C.; Stoebner Enterprises, LLC, which acquired its interest by an Act of Exchange dated February 7, 2002 between Mary Edna Miller Stoebner and Stoebner Enterprises, LLC; Martin O. Miller, II, LLC, which acquired its interest by an Act of Exchange dated February 7, 1999 between Martin O. Miller, II and Martin O. Miller, II, LLC; Marie Diane Miller, LLC, which acquired its interest by an Act of Exchange dated March 17, 1999 between Martin O. Miller, II, as the duly appointed Curator of Marie Diane Miller, and Marie Diane Miller, LLC; Boulet Family, LLC, which acquired its interest by an Act of Exchange dated January 8, 1999 between Edward S. Rapier and Paul C. Perret, as Trustees of the Stephen Paul Boulet, Jr. Trust, the Brett Michael Boulet Trust, the Robert Owen Boulet Trust and Michelle Ann Boulet Trust and the Boulet Family, LLC; and EKM, LLC, which acquired its interest by an Act of Exchange dated March 15, 1999 between the Edna K. Miller Foundation and EKM, LLC. The Seven C's Plaintiffs filed suit against TGP and Kinetica in 2015.

Facts and Procedural History

In 1957, Dr. M.O. Miller owned certain property in Cameron Parish from north of Highway 82 south to the Gulf of Mexico. The property is dry in the northern part and mostly marshland from Hwy. 82 to the Gulf. This case involves the ROW Agreement confected in 1957 between Dr. Miller and TGP. The ROW Agreement created a right of way “for the purpose of laying, constructing, maintaining [and] operating” a pipeline “for the transportation of oil, gas, petroleum products or any other liquids, gases or substances which can be transported” through pipelines.

On the dry area of the property, the pipeline was installed in a trench that was then backfilled, so that the pipeline in that area is covered by dirt. On the part of the property that was marshland, there were two segments to the laying of the pipeline. The first segment involved taking an existing canal owned by Dr. Miller, and under the ROW Agreement, TGP was to lay a portion of the pipeline in the existing canal that “would be widened to a width of forty (40’) feet.” The ROW Agreement also provided that in the second segment (where there was no existing canal), TGP was to install a portion of the pipeline in this area, “by dredging a canal approximately forty (40’) feet in width” and laying the pipeline in that canal. The canal dredged by TGP was not backfilled and remains open to this day.

TGP was not allowed to install the pipeline in the canal but rather had to bury the pipeline below the canal bed. This was apparently desired so that the Miller family and invited guests on the property would have a canal to use to access different areas of the property, as well as help drain water from the surrounding marshland to help with cattle grazing that Dr. Miller performed on the property. The canal itself serves no significant purpose in the operation of the pipeline. The ROW Agreement did not allow TGP in “any way to limit the use of the canals by GRANTOR, his family, or representatives, or others who may have his permission to use same.” The record established that Dr. Miller and later his successors allowed others to use the canal. Their land manager, Iris Broussard, used the canals regularly to inspect the property. The property was also leased to James Vincent to use the canals in his commercial crabbing business.

The ROW Agreement contained numerous conditions governing the behavior of the grantor and grantee, listed below:

(a) From the northernmost point of entry on to property of the GRANTOR (which is shown in detail by the insert shown on the plat attached hereto) south to the state highway the pipe line will be laid in a conventional manner and the ditch will be backfilled and the land leveled to its original condition. Upon crossing the state highway moving in a southerly direction, it will be necessary for GRANTEE to cut an existing levee located on property of the GRANTOR. After construction said levee shall be restored to its original condition.

(b) Upon entering the property of the GRANTOR from the north moving south after the state highway has been crossed and the existing levee, it is understood that GRANTEE will construct the remaining portion of the pipe line by dredging a canal approximately forty (40’) feet in width, and the pipe will be laid in a trench which will be excavated below the mean level of the canal. From the south edge of the existing levee, which is just south of the state highway in the northern portion of GRANTOR's property, to the point indicated on the plat attached hereto as “Point A”, all spoil dirt removed in the course of dredging the canal shall be placed on the east side of the canal in such manner as to form a levee at least twenty-four (24’) feet wide, and four (4’) feet to five (5’) feet high, having a minimum berm of sixteen (16’) feet.

(c) From “Point A” to “Point B”, as shown on the attached plat, GRANTEE is granted the right to utilize an existing canal owned by the GRANTOR. It is understood that said existing canal will be widened to a width of forty (40’) feet. All spoil removed in connection with this operation shall likewise be placed on the east side of the canal so as to form a levee at least twenty-four (24’) feet wide, and four (4’) feet to five (5’) feet high, having a minimum berm of sixteen (16’) feet.

(d) From “Point B” south to the Gulf of Mexico the spoil removed from the canal shall be placed on each side of the canal so as to form continuous levees at least twenty-four (24’) feet wide, and four (4’) feet to five (5’) feet high, having a minimum berm of sixteen (16’) feet, from “Point B” to the Gulf of Mexico.

(e) In connection with the construction of the levees heretofore referred to GRANTEE agrees that wherever sufficient material is dredged to allow it, the berm on the levee will be increased to twenty (20’) feet.

(f) GRANTEE agrees to install plugs in the canal at the various points on the plat attached hereto. The plugs shall be constricted in accordance with the inserts shown on the plat attached and shall be originally constructed to a sufficient height so as to assure that after settling said plugs will be the same height as the levees between which said plugs are constructed.

(g) GRANTEE agrees to construct at the points indicated on the plat attached four bridges. The bridges are to be constructed at said points on the east side of the canal. The time at which said bridges will be constructed shall be left to the discretion of the GRANTOR. It is anticipated that approximately one year will be required for the levees to settle sufficiently to warrant the construction of the bridges. In constricting the bridges only creosote lumber shall be utilized and the bridges shall be of materials and specifications to be decided by GRANTOR, but shall be of the general nature and size of other bridges built on other property of GRANTOR through which Tennessee Gas Transmission Company has laid a pipeline or pipelines. In all cases the bridges shall have hand rails and shall be at least the width of the crown of the levee. At each end of each bridge and around all plugs, as GRANTOR shall direct, fences and gates shall be constructed by GRANTEE. All gates shall be aluminum. This provision is intended only to establish the type of bridge to be constructed, and it is understood that the exact specifications shall be furnished by the GRANTOR both for the bridges and the manner in which the gates referred to shall be hung and the fences shall be built.

(h) GRANTEE agrees to construct culverts at the various points indicated on the plat attached. The culverts shall be twenty-four (24”) inch concrete culverts and shall be laid six (6”) inches below the main level of the ground at the point at which each is constructed. The culverts shall be of sufficient length to extend twelve to eighteen inches beyond each side of the levee under which they are constructed. After the culverts have been set in place a galvanized rod shall be placed through the culvert and each end secured to a 4” x 4” creosote timber, after which the timbers at each end shall be snugged in so as to securely hold the culverts and prevent their settling.

(i) It is understood that additional temporary area will be required during construction of the pipe line herein provided for the point at which the proposed pipe line intersects the beach of the Gulf of Mexico and also on each side of the point at which the proposed pipe line crossed the state highway. GRANTEE is hereby granted the right to use such additional area at the two points referred to as may be reasonably necessary to the purpose of the GRANTEE. It is understood that the right granted by this paragraph applies only to the temporary use of the land belonging to the GRANTOR, and that after construction of the pipe line said area will be restored to its original condition.

(j) After completion of construction of the pipe line herein provided for the permanent right of way and easement for the maintenance and operation of said pipe line shall be restricted in width to the canal dredged by GRANTEE in the course of constructing said pipe line, and at points wherein no canal is provided for the width of the right of way shall be fifty (50’) feet.

(k) The granting of the right of way hereinabove provided for is not intended in any way to limit the use of the canals by GRANTOR, his family, or representatives, or others who may have his permission to use same.

(l) Whenever it becomes necessary for GRANTEE or its agent or contractor, to cross a fence, at all times a proper enclosure shall be maintained and said fence will be restored as promptly as possible to as good condition as it was prior to the crossing.

(m) GRANTEE shall have the right to place only one pipe line under the easement.

(n) GRANTEE shall never have the right to fence the whole or any part of said easement.

(o) GRANTOR, his heirs and assigns, shall have the right to place across said right of way and easement roads, streets, sidewalks, passageways, electric light and power lines, water lines, sewer lines, gas lines, telephone poles and telephone lines, and any and all other utilities.

(p) Neither GRANTEE nor its agents or contractors shall trap or hunt on any portion of the above described land.

(q) So long as GRANTEE continues to exercise this right of way, GRANTEE will:

1. Maintain all plugs at approximately the height of the adjoining levees.

2. In the event of catastrophe which damages and/or destroys bridges, fences, levees, gates or plugs, Grantee agrees to restore same to their original condition.

3. Grantee shall be responsible for and shall restore to good condition any bridge, fence, levee, gate or plug that may be damaged or subjected to deterioration as a result of Grantee's use.

The ROW Agreement signed by the parties obligated TGP to construct four bridges and seventeen plugs at various points along the canal. A “plug” is an earthen dam that is constructed perpendicular to and across the canal, which is designed to keep the tidal flow of water out of the canal.

The parties then verbally agreed to allow TGP to reduce the number of plugs to be built. A Field Memorandum dated August 29 and 30, 1958, stated that “Dr. Miller has given permission to build bridges across canal instead of plugs per R/W Agreement. We still have to install plugs on both sides of Hog Bayou and on South side of Tom Bayou.” An April 3, 1959 letter from TGP, stated:

The only deviation we made from the provisions of this Right-of-Way Agreement were in reference to installation of earthen plugs referred to in Provision F and Item 1 of Provision Q. We obtained permission from Dr. Miller to build bridges instead of earthen plugs resulting in considerably less expense.

TGP ended up erecting only four earthen plugs, one of which (the one closest to the Gulf of Mexico) was washed away due to coastal erosion.

The ROW Agreement provides the grantee (TGP, then Kinetica as will be explained later) the right to transport natural gas through the pipeline across the Miller property. The record established the pipeline has continuously transported natural gas since its construction.

The ROW Agreement did not require further payment after the original compensation in 1957 was paid, but it is asserted that obligations were imposed upon the grantee that must be fulfilled as consideration for the rights granted to the grantee. These include the maintaining of all plugs at the height of the adjoining levees and to repair any bridges or plugs that are damaged or destroyed by a natural catastrophe.

Over the decades, there were several breaches of the levees on the western side. The record established these breaches were not always quickly repaired by the landowners (and there is no allegation that fixing any breach was the obligation of TGP). These breaches allowed significant water to enter the canals. The bridges deteriorated over the years as there was no maintenance on them, other than the Hog Bayou bridge. There was also substantial erosion on the southern border of Dr. Miller's property where a great deal of coastline was washed away, including the plug that was originally constructed where the canal intersected with the Gulf of Mexico.

In 2005, Hurricane Rita struck the area, causing widespread devastation. Following Rita, Dr. Miller's heirs (Dr. Miller died in 1974), for the first time, requested TGP to make repairs to the bridges, contending the ROW Agreement contained a clause requiring TGP to repair damage caused by a natural catastrophe (such as a hurricane). On June 28, 2011, M.O. Miller, II, sent a demand letter to TGP (who was still the grantee at that time) to rebuild the bridges that were destroyed by Hurricane Rita.

The parties went through lengthy negotiations, and during that time, in 2013, Kinetica Partners, LLC purchased the ROW Agreement and pipeline from TGP. Kinetica Partners, LLC is a company that moves natural gas through pipelines it owns, charging a transportation fee to move said gas. After the purchase, Kinetica Energy Express, LLC owned the pipeline in the canal; Kinetica Partners LLC, who is the parent company of Kinetica Energy Express, LLC, owned the ROW. Kinetica inherited the assignment of the rights of TGP under the ROW Agreement on September 1, 2013. TGP and Kinetica agreed in the Amended and Restated Purchase and Sale Agreement (hereafter ARPSA) that Kinetica would not assume any “obligations, responsibilities, liabilities, costs, and expenses arising at any time prior to Closing.”

Discussions were also held between the Miller heirs and Kinetica after the purchase of the pipeline. Kurt Cheramie, who previously had worked for TGP, became a senior vice president of operations with Kinetica, and handled negotiations with the Miller heirs over their requests to have the bridges rebuilt. Kinetica did in fact repair the bridge over Hog Bayou, though it is argued it was not done to original specifications. Mr. Cheramie later testified the continuing negotiations were not held because Kinetica believed it was legally responsible for rebuilding the bridges, but because it had several other business ventures over Miller family land and the discussions were a gesture of goodwill for a valued business partner.

On September 12, 2014, P.A. Miller, LLC and the Succession of Max Kaplan filed suit against TGP and Kinetica for breach of the 1957 ROW Agreement, specifically Defendants’ failure to restore bridges and plugs damaged by Hurricane Rita. The Succession of Max Kaplan subsequently sold its interest in the property and is no longer a party to the suit. In its answer to P&A's suit, Kinetica acknowledged “[TGP] has conveyed its interest in the right of way and that [Kinetica] has acquired and is exercising the right to own and operate the pipeline located in the right-of-way.”¹

On September 17, 2015, the Seven C's Plaintiffs filed suit for specific performance and damages, alleging a breach of the 1957 ROW Agreement. Its lawsuit alleged Hurricane Rita caused damage to the bridges, levees and plugs, specifically damaging 10 bridges and 3 plugs. The two lawsuits were consolidated for trial in 2016.

In 2018, the Seven C's Plaintiffs amended their suit to claim that TGP and Kinetica had a duty to prevent the canal from widening and that they caused or allowed the canal to widen. It was acknowledged that Kinetica did rebuild the Hog Bayou Bridge, but not to original specifications, and that the bridge was subsequently damaged by Hurricanes Laura and Delta, which since that time has not been repaired or rebuilt. Plaintiffs demanded specific performance of the obligations to restore and maintain the width of the pipeline canal and to restore the plugs and the bridges (including the Hog Bayou Bridge). Plaintiffs maintained the undisputed evidence established the width of the canal ranges anywhere from fifty feet to as much as two hundred feet in some areas. It is further alleged that approximately nineteen acres of marshland have eroded as a result of the widening of the canal; although Kinetica's expert asserted it was only approximately nine acres of land that eroded. Plaintiffs contended the reason for the canal widening is a lack of maintained plugs, which would have largely prevented the flow of water and helped limit erosion.

In 2022, TGP filed a motion for partial summary judgment arguing the “1957 ROW Agreement does not require any party under the agreement to maintain the canal.” TGP further argued that the ROW Agreement granted it a right of use to operate a pipeline but did not impose an express duty on it to prevent natural forces or third parties from causing the canal to widen beyond forty feet.

Kinetica also filed a motion for summary judgment on the grounds it had no liability for any breach of any obligation under the ROW that occurred prior to Kinetica's acquisition of the ROW assignment from TGP; thus, there was no legal basis for obligating it to repair the damages caused by Hurricane Rita which occurred eight years before Kinetica acquired the pipeline. Kinetica further asserted that the only written agreement relating to the pipeline right of way at issue is the ROW Agreement between TGP and Dr. Miller, and it did not contractually assume any obligations under the agreement for any matters occurring prior to its acquisition of the pipeline.

Plaintiffs countered that the claims against both TGP and Kinetica arose from the same pipeline operations, pursuant to the same source of obligations, which makes them solidarily liable for Plaintiffs’ damages.

The trial court denied both TGP's and Kinetica's motions for partial summary judgment, stating as follows:

After reviewing this matter, the Court finds that the right-of-way agreement permanently restricts the canal width to forty feet; further that [the] Tennessee Gas Pipeline assignment of the right-of-way agreement to Kinetica in 2013 does not relieve them of their obligations under the right-of-way agreement while they were exercising their rights under the right-of-way agreement prior to 2013.

Both Kinetica and TGP filed writ applications to this court seeking reversals of the denial of their motions for summary judgment. On October 12, 2023, this court denied both writ applications, stating in each: “WRIT DENIED. We find no error in the trial court's ruling.”

Following this court's writ denial, both TGP and Kinetica filed writ applications with the Louisiana Supreme Court. Those applications were denied on January 24, 2024.

On April 24, 2024, Kinetica filed an Exception of No Right of Action alleging that the subsequent purchaser doctrine applied to prevent Plaintiffs from recovering in this action. The exception was deferred to the trial on the merits.

On April 29, 2024, the morning trial was to commence, both P&A Miller and the Seven C's Plaintiffs settled with TGP, dismissing all claims against it with prejudice. As a result, trial on the merits proceeded solely against Kinetica. Despite the settlement with TGP, at trial Plaintiffs sought specific performance from Kinetica to restore the land lost from the widening of the canal, which its expert testified was approximately nineteen acres of lost land, and which he also estimated would cost approximately $42 million dollars to restore. Plaintiffs also sought specific performance from Kinetica in the rebuilding or replacement of all damaged plugs and bridges that were previously built by TGP.

Following a three-day bench trial, the matter was taken under advisement by the trial court and all parties submitted post-trial memoranda. The trial court issued Reasons for Judgment on January 15, 2025. The trial court denied Kinetica's exception of no right of action, finding that the subsequent purchaser doctrine did not apply because all buyers were already owners of the property at issue and were descendants of Dr. M.O. Miller. The trial court did order specific performance by Kinetica to restore three plugs and the Hog Bayou Bridge. The trial court dismissed Plaintiffs’ claims for specific performance of the obligation to restore and/or restrict the width of the pipeline canal. It further dismissed Plaintiffs’ claims for restoration or rebuilding of the ten bridges, finding the ROW Agreement was never modified to include those ten bridges. Final judgment incorporating that result was signed on February 26, 2025.

Both P&A Miller and the Seven C's Plaintiffs have appealed the trial court's judgment. P&A Miller asserted the following assignments of error:

1. The trial court erred in denying plaintiffs’ claims for specific performance of obligation imposed by the ROW Agreement and Louisiana law to restore and restrict the width of the pipeline right of way canal.

2. The trial court erred in denying plaintiffs’ claims for specific performance of obligation imposed by the ROW Agreement to restore the ten bridges across the canal constructed pursuant to the ROW Agreement and destroyed by Hurricane Rita.

Similarly, in its appeal the Seven C's Plaintiffs set forth nearly identical assignments of error:

1. The [trial court] erred denying Plaintiffs’ claims for specific performance of Kinetica's obligation to restore the restricted width of the canal. It retreated from its pretrial judgment that the ROW Agreement restricted the width of the canal, and erred by not following Louisiana law that requires maintenance and repairs by a party having a right of use over another's property. It erred by not granting specific performance directing Kinetica to restore the canal to its originally dredged width. It further erred concluding that there was no evidence that Kinetica operated outside of the right-of-way, and concluding that there was no evidence that Kinetica caused the canal to widen.

2. The [trial court] erred denying Plaintiffs’ claims for specific performance to restore all bridges across the canal. It erroneously concluded that the ROW Agreement's maintenance did not apply to all bridges, and erroneously concluded that there was no evidence at trial of the condition of the bridges.

Kinetica filed an answer to the appeal, alleging several errors on the part of the trial court. Kinetica maintains the trial court erred in denying the exception of no right of action and requests reconsideration of that issue and dismissal of Plaintiffs’ claims in their entirety. They also contend the trial court erred in ordering installation of “three plugs as contained in the 1961 aerial imagery and to maintain them in accordance with the ROW agreement.” In the alternative as to the plugs, if that judgment is upheld, Kinetica requests it be granted a credit for TGP's virile share of liability as to the plugs. Kinetica further argues that a release signed by Dr. Miller in 1957 effectively released the grantee from all obligations under the ROW Agreement. Lastly, Kinetica maintains Plaintiffs’ claims are prescribed as to the plugs claim.

Motion to Strike

On May 4, 2026, Kinetica filed a Motion to Strike the “Brief in Opposition to Answer to Appeal” filed by the Seven C's Plaintiffs on March 2, 2026 and the “Response of Appellant, P&A Miller, LLC, to Kinetica's Answer to Appeal” filed by P&A Miller on April 29, 2026. Oral argument on this matter was held on May 6, 2026.

We deny the motion to strike as to the Seven C's Plaintiffs’ brief filed on March 2, 2026. That brief was filed over two months prior to oral argument and addressed the numerous assignments of error asserted by Kinetica in its answer to the appeal. Although the Seven C's Plaintiffs had previously filed a Reply Brief, also on March 2, 2026, that brief addressed only the two assignments of error asserted by Plaintiffs, and not the issues raised in Kinetica's answer to the appeal.

We grant the motion to strike P&A Miller's response brief which was not filed until April 29, 2026. This court does have discretion to allow a reply brief when in the interest of justice. Colson v. Colfax Treating Co., LLC, 17-913 (La.App. 3 Cir. 4/18/18), 246 So.3d 15. However, in the present matter, we do not find that the interests of justice are furthered by allowing a response brief filed over two months after Kinetica's brief and only a few days prior to oral argument. Therefore, we will not consider that brief in rendering our opinion.

Exception of No Right of Action

Prior to addressing the Plaintiffs’ assignments of error, we will first address Kinetica's contention that the trial court erred in denying its Exception of No Right of Action, which if granted would result in the dismissal of Plaintiffs’ claims. Kinetica argues the subsequent purchaser doctrine invalidates their claims. In Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, p. 8 (La. 10/25/11), 79 So.3d 246, 256–57, the Louisiana Supreme Court explained the subsequent purchaser doctrine:

The subsequent purchaser rule is a jurisprudential rule which holds that an owner of property has no right or actual interest in recovering from a third party for damage which was inflicted on the property before his purchase, in the absence of an assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted.

We will first address how the respective Plaintiffs acquired their ownership interests in the property in question. The record establishes the various Plaintiffs’ ownership of the property derived from several “Acts of Exchange” between the descendants of Dr. M.O. Miller and the LLC's which received their interests. The descendants originally obtained their portions of the ownership of the property through Dr. Miller's succession and by way of donations from Dr. Miller's wife, Edna K. Miller. Dr. Miller died in 1974. Edna K. Miller donated her one-half interest in the community property to each of her eight children and the eight children later inherited Dr. Miller's one-half interest in the property through his succession.

Then, in the late 1990s and early 2000s, the children transferred these inherited interests to LLCs, that now own the property and are the named Plaintiffs in this case. There was no sale or exchange of money in these acts, just a transfer by the heirs to a legal entity. Some of the Plaintiffs later received additional interests in the property by way of acts of cash sale, which the trial court specifically noted contained the necessary language to transfer the right of action to sue for damages that occurred prior to the cash purchase. In the 2020 Act of Cash sale from the Succession of Max Kaplan to Martin O. Miller, II, LLC, Marie Diane Miller, LLC, EKM, LLC, Seven C's Properties, LLC, Stoebner Enterprises, LLC, and Boulet Family, LLC, it transferred:

․ all right of recovery for any damages based on the theory of tort and breach of contract, breach of duty (whether statutory, contractual or otherwise), regulatory of statutory liability, or strict liability including defect of ruin or premises, either apparent or non-apparent.

The 2021 Act of Cash Sale from Riceland Exploration Company to Martin O. Miller, II, LLC, EKM, LLC, Seven C's Properties, LLC, Stoebner Enterprises, LLC, and Boulet Family, LLC, and the 2023 Act of Cash Sale from the Thomas Mr. Rollins Trust to Martin O. Miller, II, LLC, Seven C's Properties, LLC, Stoebner Enterprises, LLC, and Boulet Family, LLC, contained the following language transferring:

․ any and all claims for the damage to the Subject Property of any type. These claims include all personal Vendor has a claim, including claims, causes of action and rights of action, which result, arising out of, or relate in any way to oil and gas operations on the Subject Property, at any time by anyone; and claims causes of actions or rights of action for alleged pollution or contamination of the Subject Property which result, arise out of, or relate in any way to such oil and gas operations, without limitation.

Kinetica argues that in Eagle Pipe, 79 So.3d 246, 256-57, the Louisiana Supreme Court held that the subsequent purchaser doctrine applies to Plaintiffs’ claims and prevents it from “recovering from a third party for damage inflicted on the property before his purchase, in the absence of an assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted.”

In Eagle Pipe, the Supreme Court noted the rights acquired by the subsequent purchaser included a cause of action in redhibition and the right to sue for rescission of the sale or the reduction of the purchase price as there was a sale of the property. However, unlike the situation in Eagle Pipe, the law does not provide to heirs a cause of action in redhibition and the right to sue for rescission of the sale or the reduction of the purchase. The availability of other remedies provided to a subsequent purchaser as described by the Supreme Court in Eagle Pipe does not apply to a transfer from individual heirs to a partnership when the individual heirs receive shares in the partnership and not money. This was noted by the supreme court in Pierce v. Atlantic Richfield Co., 14-1233, p.1 (La. 3/17/15), 166 So.3d 996, 997, where the supreme court stated in a per curiam opinion:

Because Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 2010-2267, 2010-2275, 2010-2279, 2010-2289 (La. 10/25/11), 79 So.3d 246, addressed subsequent purchaser rights following a sale, which are distinguishable from the rights acquired through a succession transfer, we find Eagle Pipe is not dispositive of the exceptions of no right of action filed by the defendants in this case. Accordingly, the lower court judgments are reversed, and the case is remanded to the district court for further proceedings.

Similarly, the fourth circuit in Bergeron v. B-P AMOCO, 23-212, p. 9 (La.App. 4 Cir. 12/20/23), 382 So.3d 368, 374-75, held the subsequent purchaser doctrine “does not apply to a transfer from individual heirs to a partnership when the individual heirs receive shares in the partnership and not money.”

The same reasoning applies here. The Plaintiffs lack other remedies that would be available to them if there was a sale instead of simply an exchange. And, as noted above, for the instances where some of the Plaintiffs acquired a further interest in acts of cash sale, those acts contained the appropriate language transferring personal rights to sue. Therefore, we find the trial court correctly denied the exception of no cause of action.

Canal Widening Claim

A. Law of the Case

Initially, Plaintiffs argue this court's 2023 writ denial and the Louisiana Supreme Court's 2024 writ denial as to the trial court's judgment denying TGP's motion for partial summary judgment constitute the law of the case on the issue of whether the canal dredged by TGP was permanently restricted to forty feet. Plaintiffs point to the trial court's statement that the “right-of-way agreement permanently restricts the canal width to forty feet.” They note the general rule of law that “a considered writ denial constitutes law of the case. Waller v. State, Dep't of Health & Hosp., 11-643, p. 4 (La.App. 3 Cir. 11/9/11), 79 So.3d 1085, 1089, writ denied, 11-2692 (La. 2/10/12), 80 So.3d 488.” As was set forth above, this court's writ denial simply stated: “WRIT DENIED. We find no error in the trial court's ruling.”

The law of the case doctrine does not apply when the previous ruling was a mere refusal to exercise supervisory jurisdiction. In this case our writ denial was to TGP's writ application to the trial court's denial of its motion for partial summary judgment. We stated we found no error in the trial court's ruling denying partial summary judgment, not for any specific reasons the trial court may have given.² This court denying writs does not mean it did so because it agreed that the right-of-way agreement permanently restricts the canal width to forty feet, but simply that the trial court did not err in finding summary judgment was not appropriate at that stage in the proceedings. Moreover, we note that in Guidry v. USAgencies Cas. Ins. Co., Inc., 16-562, p. 8 (La.App. 1 Cir. 2/16/17), 213 So.3d 406, 414, writ denied, 17-601 (La. 5/26/17), 221 So.3d 81, the court addressed a similar situation as here and stated:

The law of the case doctrine does not apply to a trial court's rulings on interlocutory issues. Land v. Vidrine, 2010-1342, p. 9 (La. 3/15/11), 62 So.3d 36, 42. A judgment denying a motion for summary judgment is interlocutory in nature. See La.Code Civ. P. art. 968. Prior to final judgment, a trial judge may, at his discretion, change the substance or the result of interlocutory rulings. Ryan v. State Farm Mutual Auto. Ins. Co., 2010-0961, p. 4 (La.App. 1 Cir. 12/22/10), 68 So.3d 563, 566, writ denied, 2011-0172 (La. 4/1/11), 60 So.3d 1250.

Therefore, there is no merit to Plaintiffs’ argument that our prior writ denial constituted the law of the case.

B. Merits of the Canal Widening Claim.

The trial court denied the Plaintiffs’ demand for specific performance to restore the land loss caused by the widening of the canal dredged by TGP. Both P&A Miller and the Seven C's Plaintiffs assign as error the trial court's denial of this claim.

Initially, we note the trial court made several findings of fact concerning Plaintiffs’ canal widening claim. The trial court specifically found there “was no evidence presented that TGP or Kinetica ever operated outside of their right of way on Plaintiffs’ property, and there was no evidence presented that Kinetica did anything to cause the canal to widen.” It was also found by the trial court that external factors likely caused the canal to widen that had nothing to do with any actions of Kinetica or TGP and were either naturally occurring events or events caused or exacerbated by acts of the landowners. The record established there were several breaches in the west levee that occurred in the 1980s and 1990s, that allowed a significant incursion of water each time into the canal, which would have unquestionably led to widening of the canal. There is nothing in the record to remotely suggest that any actions of TGP led to the levee breaches. There also was testimony that Dr. Miller regularly used the canal to drain the surrounding marshland to facilitate his cattle raising activities. The trial court also specifically noted there was a Ducks Unlimited water control structure project undertaken by the landowners in 2012 that diverted water into the canal. Clearly, these activities were not caused by TGP, nor would they have provided any benefit to the grantee in its use of the pipeline.

Plaintiffs do not necessarily dispute these factual findings but argue “whether the widening was caused by TGP or Kinetica is irrelevant to Kinetica's liability.” They maintain they are not suing on the basis of fault under La.Civ.Code art. 2315, but on the basis of breach of contract. Thus, Kinetica's liability is based on its failure to meet its obligations under the terms of the ROW Agreement and Louisiana law. However, the trial court found the ROW Agreement does not restrict the width of the canal to forty feet nor does it provide for the grantee to maintain the width of the canal at forty feet. The language at issue in the ROW Agreement is found in condition (j), which states as follows:

(j) After completion of construction of the pipe line herein provided for the permanent right of way and easement for the maintenance and operation of said pipe line shall be restricted in width to the canal dredged by GRANTEE in the course of constructing said pipe line, and at points wherein no canal is provided for the width of the right of way shall be fifty (50’) feet.

Viewing the above language, the trial court did not err in its finding that “Plaintiffs have failed to prove that the grantee under the ROW agreement was required to maintain the canal at any specific width.” The trial court held the ROW Agreement only provided for maintenance of the adjoining levees in the event of damage caused by a catastrophe (condition (q) 2) or for damage or deterioration that occurred due to the grantee's usage (condition (q) 3). Neither of those conditions were applicable in this case. The trial court specifically found that there “was no evidence presented that TGP or Kinetica ever operated outside of their right of way on Plaintiffs’ property.” Further, when asked at trial if there was anything “in the contract which says [the grantees] have to maintain the canal,” Mr. M.O. Miller, II, answered “there's no language to that – specifically to that effect.”

The specific language in ROW Agreement (j), rather than requiring the grantee to maintain the width of the canal to forty feet, simply provides use of the “right of way and easement for the maintenance and operation of said pipe line shall be restricted in width to the canal dredged by GRANTEE in the course of constructing said pipe line.” The only reference to width is that the grantee could only maintain and operate the pipeline at the width of the canal originally dredged. Thus, as Kinetica notes, the ROW Agreement prevents the grantee from even accessing the banks of the canal and performance of any maintenance would be prohibited by the plain language of the ROW Agreement.³ Therefore, the trial court did not err in finding the ROW agreement does not provide that TGP or Kinetica has any obligation to maintain the canal and we affirm the denial of the canal widening claim.

The Bridges Claim

The original ROW agreement signed by the parties required TGP to construct only four bridges, all to be built on the east side of the canal. The evidence established that these four bridges were of importance rather than simply convenience, as they allowed access to the southern portion of the property. All parties agree that during construction of the canal, Dr. Miller and TGP agreed to allow the building of ten additional bridges over the canal rather than building plugs. The testimony at trial established these additional bridges were simply to facilitate crossing from one side of the canal to the other.

The trial court noted the ROW Agreement “does not require that TGP maintain any of the bridges constructed and there is no evidence that the Plaintiffs conducted any maintenance of the bridges.” It was further noted that as to the four bridges that were on the east side of the levee, Mr. M.O. Miller, II, testified that two of the bridges were gone prior to Hurricane Rita. The two bridges that remained were the Tom Bayou Bridge and the Hog Bayou Bridge. Mr. Miller testified that Plaintiffs were not seeking specific performance for the three bridges that lead up to Hog Bayou. Kinetica replaced the bridge at Hog Bayou after the Plaintiffs’ demand, but it was damaged as a result of Hurricanes Laura and Delta in 2020. The trial court found the Hog Bayou Bridge would be subject to the ROW agreement, condition (q) 2, and that Kinetica, as the grantee under the ROW Agreement, was liable to restore that bridge to its original specifications. No party disputes that portion of the trial court's judgment.

Plaintiffs argue the trial court erred in denying their claims for specific performance to restore the ten bridges that crossed the canal. Plaintiffs take issue with the trial court's finding that, although the parties agreed to construct ten bridges that crossed the canal as opposed to plugs, “the ROW agreement was never modified to include these ten bridges.” The trial court relied on the fact that there was no writing or correspondence in which it was asserted these ten bridges would be subject to condition (q) of the ROW Agreement. Plaintiffs acknowledge there was nothing ever memorialized in writing that would subject these ten bridges to the ROW Agreement's condition (q). Mr. M.O. Miller, II, testified as follows:

Q. My Question back – I'm going to circle back to that question. Are you aware of any correspondence, written agreement, anything else in writing, which makes those 10 bridges, the additional bridges, subject to Paragraph Q of the right-of-way agreement, which you rely on.

A. Just common sense.

Q. Common sense.

A. Yes.

In arguing that the ROW Agreement should include these ten bridges, Plaintiffs assert the ROW Agreement was modified through the conduct of the parties. The law is clear that written contracts may be modified by oral contracts and the conduct of the parties. Grosjean v. Grosjean, 45,529 (La.App. 2 Cir. 10/13/10), 50 So.3d 233, writ denied, 10-2623 (La. 2/4/11), 57 So.3d 311, and writ denied, 10-2619 (La. 2/4/11), 56 So.3d 980; Lantech Constr. Co. v. Speed, 08-811 (La.App. 5 Cir. 5/26/09), 15 So.3d 289. In support of their argument that the ROW Agreement was modified to include the ten bridges, they point to the oral agreement between TGP and Dr. Miller to build the ten bridges instead of plugs, and the subsequent conduct of the parties as evidence that Kinetica believed the bridges were subject to condition (q). However, the trial court did not agree with this argument.

Plaintiffs refer to the testimony of M.O. Miller, II and Kurt Cheramie as evidence that Kinetica believed it had an obligation to replace the bridges in question. Mr. Miller stated in his testimony that Kinetica, through Mr. Cheramie, agreed to replace several of the bridges in question. Although Mr. Cheramie acknowledged there were discussions with Plaintiffs about replacing bridges, he explained this “offer” was not done because Kinetica believed it was obligated to do so. Mr. Cheramie testified as follows:

Q. Sir, did Kinetica ever tell the landowners that it was going to restore six bridges – rebuild six of these bridges?

․

A. Yes, I mean, we have – we were talking settlement, trying to get things done. And – and I have been – I had known the Millers for a number of years prior to this. And we have several other right-of-way agreements on – on Miller property. And for goodwill, and – and just continuing to talk and negotiate, yes, I had conversations with him (Mr. M.O. Miller) on an ongoing basis.

Q. Okay, and in those conversations, Kinetica agreed to rebuild six of the bridges?

A. In – in my negotiations as goodwill, yes. Did – did I – did I believe that Kinetica was responsible for it? Absolutely not.

․

I was talking to Mr. Miller and Martin about goodwill and trying to continue to talk to them about getting something done. Did I believe that we were responsible? No, because Hurricane Rita happened in 2005, before Kinetica was even in existence. So I did not believe Kinetica was responsible for doing whatever. If – if they had to be replaced, I don't believe Kinetica was responsible for that. If anybody, it would have been Tennessee Gas.

Although Mr. Cheramie acknowledged there were discussions about the bridges with Plaintiffs, he strongly indicated that he did not believe Kinetica was in any way responsible for replacing the bridges. He gave the plausible explanation that because Kinetica had several other dealings on Miller property, it was in Kinetica's best interest to try and reach an amicable result of the ongoing situation. Therefore, we find no error in the trial court's conclusion that the ROW Agreement “was never modified to include these ten bridges” and thus, condition (q) “does not apply to these [ten] bridges that were part of a verbal agreement.” Therefore, we affirm the trial court's denial of Plaintiffs’ claim that Kinetica was obligated under the ROW Agreement to replace those ten bridges.

The Plugs Claim

In its answer to the appeal, Kinetica contends the trial court erred in ordering installation of “three plugs as contained in the 1961 aerial imagery and to maintain them in accordance with the ROW agreement.” In the alternative as to the plugs, if that judgment is upheld, Kinetica requests it be granted a credit for TGP's virile share of liability as to the plugs.

The trial court specifically found the ROW Agreement “required maintenance of the plugs.” As opposed to Plaintiffs’ claim for the ten bridges, it is clear the ROW Agreement provided for the grantee to maintain the plugs. Condition (q) states:

(q) So long as GRANTEE continues to exercise the right of way, GRANTEE will:

1. Maintain all plugs at approximately the height of the adjoining levees.

There is no dispute that Kinetica, as grantee, has at all times since acquiring the pipeline continued to transport gas through the pipeline across Plaintiffs’ property. There also was no evidence that either TGP or Kinetica ever maintained the plugs as required by the ROW Agreement. The obligation in the ROW Agreement is for the grantee to “[m]aintain all plugs at approximately the height of the adjoining levees.” Therefore, Kinetica, as the current grantee under the ROW Agreement, is liable for replacing and maintaining the plugs and the trial court did not err in so holding.

Kinetica also argues, if this court affirms the trial court's judgment ordering replacement of the three plugs, it should be entitled to a credit for TGP's virile share of liability as to the plugs. Kinetica bases its arguments on the language of the ARPSA signed by TGP and Kinetica, arguing it only assumed those liabilities and obligations “arising at any time on or after the Closing Date,” but did not assume any liabilities or obligations “arising at any time prior to Closing.”

Initially, it must be noted that Plaintiffs were not parties to the ARPSA between Kinetica and TGP, so that contract cannot serve to limit Kinetica's obligations to Plaintiffs under the clear language of the ROW Agreement. Once Kinetica became the grantee under the ROW Agreement it became subject to condition (q), which requires a continuing duty by the grantee to maintain the plugs at the height of the adjoining levees during its ongoing use of the pipeline. Surely, prior to its decision to purchase the pipeline and ROW from TGP, Kinetica both read the ROW Agreement and assessed the condition of the plugs prior to its purchase of the pipeline. There were already discussions ongoing between TGP and the Plaintiffs about obligations allegedly owed under the ROW Agreement, and the demand letter from M.O. Miller, II, was in the ROW files Kinetica reviewed prior to its purchase. Thus, Kinetica knew, or should have known, of potential liability it could face for the substandard condition of the plugs when it negotiated the purchase with TGP. It should also be noted that during the lengthy, years-long proceedings in this matter, up until TGP's dismissal on the morning of trial, Kinetica never made any demand nor sought contribution from TGP. Therefore, we decline to award any credit to Kinetica for any virile share of alleged liability on TGP's part as to the plugs.

1957 Release Signed by Dr. Miller

Kinetica also argues that a release signed by Dr. Miller in 1957 effectively released the grantee (then TGP, now Kinetica) from all obligations under the ROW Agreement. However, a complete reading of the release does not support this argument:

․ release and forever discharge ․ Tennessee Gas Transmission Company from any and all claims, costs and damages which I have sustained directly or indirectly, in any way by reason of the construction of a pipe line though and over certain lands owned by me ․

It is understood that this release includes all damage which may be sustained by the land over which said pipe line is to be constructed including the diminution in value of the land and improvements situated in the vicinity of said pipe line right of way during the construction of said line. It does not include, however, any future damage caused by Tennessee Gas Transmission Company, after the original construction of said pipe line is complete, in the inspection and maintenance of said pipe line. This release shall not be construed as relieving the Tennessee Gas Transmission Company from the specific obligations assumed by it in the said right of way deed.

(Emphasis added.)

The limited nature of the release can be seen in the language italicized and bolded above. As Plaintiffs note, this was a construction damage release limiting the release to claims, costs and damages sustained by Dr. Miller “by reason of the construction of a pipe line.” Further, it specifically stated the “release shall not be construed as relieving [the Grantee] from the specific obligations assumed by it in the same right of way deed.” Clearly, the damages sought by the Plaintiffs herein occurred after construction of the pipeline and are not covered by that particular release.

Prescription Defense

In its answer, Kinetica maintains Plaintiffs’ plug claims were prescribed. Kinetica also notes the trial court never addressed its claims of prescription on this issue.

Initially, we note “[w]hen a judgment is silent as to part of the relief requested, the judgment is deemed to have denied that relief.” Duhon v. Lafayette Consol. Gov't, 05-657, p. 11 (La.App. 3 Cir. 12/30/05), 918 So.2d 1114, 1120, citing Guaranty Bank & Trust Co. of Alexandria, La. v. Carter, 394 So.2d 701 (La.App. 3 Cir.), writ denied, 399 So.2d 599 (La.1981).

As was discussed earlier, it is clear the ROW Agreement provided a continuing duty for the grantee to maintain the plugs. The plain language of condition (q) states “So long as GRANTEE continues to exercise this right of way ․ [it will] “[m]aintain all plugs at approximately the height of the adjoining levees.” Since its purchase in 2013, Kinetica has continued to exercise the right of way and operate the pipeline. In Marin v. Exxon Mobil Corporation , 09-2368, 09-2371, p. 29 (La. 10/19/10), 48 So.3d 234, 255, the Louisiana Supreme Court found correct the plaintiffs’ position that a lessee “has continuing obligations under both the mineral and surface lease that cannot prescribe as a matter of law.” The Marin court found such contractual obligations “continue throughout the term of the lease” and because the leases “were still in effect at the time of trial, the Marin plaintiffs’ claims for damage to their property have not prescribed.” Id. at 256.

Therefore, because Kinetica's obligations as to the maintenance of the plugs under condition (q) are ongoing, Plaintiffs’ claims for this breach did not prescribe.

DECREE

For the foregoing reasons, the motion to strike the “Response of Appellant, P&A Miller, LLC, to Kinetica's Answer to Appeal” filed by P&A Miller on April 29, 2026 is granted. The motion to strike the “Brief in Opposition to Answer to Appeal” filed by the Seven C's Plaintiffs on March 2, 2026 is denied. The judgment of the trial court is affirmed in all respects. All costs of this appeal are assessed one-half to Plaintiffs-Appellants, P&A Miller and the Seven C's Plaintiffs, and one-half to Defendants, Kinetica Partners LLC and Kinetica Energy Express, LLC.

MOTION TO STRIKE GRANTED IN PART; DENIED IN PART; JUDGMENT AFFIRMED.

FOOTNOTES

1.   Kinetica notes in its brief that P&A Miller's petition named Kinetica Energy Express LLC (which owned the pipeline) as a defendant, rather than Kinetica Partners LLC (which owned the Right of Way). However, in its answer Kinetica Energy Express LLC did not challenge whether it was the proper party to be sued.

2.   We note that in its written reasons for judgment, the trial court specifically noted that “[a]fter reviewing this wording used to deny TGP's Motions for Partial Summary Judgment that ‘the right of way agreement permanently restricts the canal [width to] forty feet․’, the Court finds it to be contradicted by the evidence at trial.”

3.   This conclusion is also supported by the testimony in the record that the canal was solely for the benefit of the Miller family and not for the grantee, and rather than the ROW Agreement granting TGP the right to build the canal, it imposed an obligation on TGP to build the canal for Dr. Miller's benefit. That is why Dr. Miller was kept informed of the progress of the construction of the canal; Dr. Miller was not asked to approve the laying of the pipeline. Iris Broussard testified that Dr. Miller had cattle operations and the canal was important to drain the marshland; again for the benefit of Dr. Miller. Mr. M.O. Miller, II confirmed at trial that he “considered this canal to be a private canal for the Miller family.”

THIERRY, Judge.