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Lafourche Realty Company, Inc. v. Entergy Louisiana, Inc.

Court of Appeals of Louisiana, First Circuit

July 17, 2018

LAFOURCHE REALTY COMPANY, INC. AND THE ALLAN COMPANY
v.
ENTERGY LOUISIANA, INC., ENTERGY LOUISIANA HOLDINGS, INC., ENTERGY SERVICES, INC., IRBY CONSTRUCTION COMPANY, IRBY CONSTRUCTION COMPANY OF MISSISSIPPI, HIGHLINES CONSTRUCTION COMPANY, INC., AND FROGCO, INC.

          APPEALED FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF LAFOURCHE STATE OF LOUISIANA DOCKET NUMBER 104457, DIVISION "A" HONORABLE JOHN E. LEBLANC, JUDGE

          P. Albert Bienvenu Attorney for Plaintiff/Appellant New Orleans, Louisiana Allan Company -Golden Meadow, LLC

          Charlton B. Ogden, III And Sean D. Moore New Orleans, Louisiana Attorneys for Defendants/ Appellees Entergy Louisiana, LLC, and Aegis Insurance Services, Ltd.

          BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.

          MCDONALD, J.

         This is an appeal from a ruling granting summary judgment in favor of Entergy Louisiana, LLC (hereafter Entergy) and its insurer, Aegis Insurance Services, Ltd. (hereafter Aegis Insurance), and against Allan Company-Golden Meadow, LLC[1] (hereafter Allan Company), dismissing Allan Company's claims for breach of contract.[2] After a de novo review, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Allan Company is a family-owned company that owns approximately 1, 280 acres of marshland south of Golden Meadow, Louisiana. Louisiana Power & Light Company, the predecessor to Entergy Louisiana, LLC, secured a right of way agreement in 1957 to construct, maintain, and operate an electric transmission line in a 100-foot wide strip across six acres of the property. The transmission line was damaged by Hurricane Katrina. Entergy was using marsh buggies and other equipment to carry out emergency repairs to the transmission line in September 2005 when it damaged Allan Company's property inside of and adjacent to the right of way.

         Lafourche Realty Company, Inc. owns neighboring property to Allan Company, and Entergy also has a 1957 right of way agreement with Lafourche Realty Company. Entergy also caused damage to Lafourche Realty Company property during its repair work after Hurricane Katrina.

         On September 1, 2006, plaintiffs, Lafourche Realty Company, Inc.[3] and Allan Company, filed suit against Entergy Louisiana, Inc., Entergy Louisiana, LLC (as above, hereafter Entergy), Entergy Holdings Louisiana, Inc., Entergy Services, Inc., Entergy Gulf States Inc., [4] for damages, including the cost to restore the marshland. By subsequent amending petitions, Allan Company members Elizabeth Culver Jahncke, Jeannie Culver Dragon, and John A. Culver were added as additional plaintiffs and additional defendants were named, including Aegis Insurance and the contractors and subcontractors that worked on Allan Company's property, Highlines Construction Company, Gray Insurance Company (insurer for Highlines Construction Company), Irby Construction Company, Irby Construction Company of Mississippi, Old Republic Insurance Company (the insurer for Irby Construction Company and/or Irby Construction Company of Mississippi), [5] Marsh Buggies, Inc., Frogco Rentals, LLC, Frogco Amphibious Equipment, Inc., and Alea London, Ltd (insurer for the Frogco companies).[6] The claims included tort, breach of servitude, breach of contract, and detrimental reliance. The property is valued at less than $5, 000.00. Allan Company made restoration claims for the property that exceeded $3, 000, 000.00.

         On December 28, 2015, Entergy and Aegis Insurance filed a motion for summary judgment seeking to dismiss Allan Company's claims against Entergy and Aegis Insurance for breach of contract, asserting that there was no genuine issue of material fact that no contract existed that obligated Entergy to restore Allan Company's property to the condition it was in prior to the post-Katrina repair work. Entergy maintained that it acted within its authority under the 1957 right of way agreement, which could only be modified in writing, that there was no such written modification, and that Allan Company's claim for damages was controlled by servitude law. Alternatively, Entergy maintained that if there was a verbal agreement to modify the terms of the right of way or create new obligations to restore the tract to the condition it was in prior to the post-Katrina repair work, such agreement was vitiated by error, duress, or fraud. In support of its motion for summary judgment, Entergy attached numerous exhibits including Entergy's 1957 right of way agreement with Allan Company, Entergy's 1957 right of way agreement with Lafourche Realty Company, Entergy's January 31, 1992 agreement with Lafourche Realty Company to restore Lafourche Realty Company property when damaged by Entergy's use of its right of way, as well as depositions of an Entergy representative, Bruce Brignac, and Allan Company representative John Culver.

         Allan Company filed an opposition to the motion for summary judgment, asserting that there was an enforceable oral amendment to the right of way agreement and/or a new enforceable oral contract before Entergy began the transmission line work that included Entergy's agreement to provide full restoration of the property to its previous state. In support of its opposition to the motion for summary judgment, Allan Company attached numerous exhibits, including photographs of the property, assessments of the property damage and repair estimates, the affidavit of John Culver, and the affidavits of Bobby Comeaux and Glenn Plaisance, both representatives of John Plaisance & Sons, Inc. (JP&S), a corporation in Golden Meadow.

         The motion for summary judgment was heard on April 22, 2016. Thereafter, the trial court granted summary judgment in favor of Entergy and Aegis Insurance and against Allan Company and dismissed the claims for breach of contract. The judgment was signed on December 2, 2016. Allan Company appealed that judgment.

         THE RULE TO SHOW CAUSE

         This court issued a rule to show cause order on June 21, 2017, noting that the December 2, 2016 judgment appeared to be a partial judgment, as it did not dispose of all the claims and issues in the case, and further, the judgment did not contain the designation of finality required by La. C.C.P. art. 1915(B). This court gave the parties until July 21, 2017, to show cause why the appeal should not be dismissed, citing Motorola, Inc. v. Associated Indem. Corp. (Motorola II), 2002-1351 (La.App. 1 Cir. 10/22/03), 867 So.2d 723, 732.

         Thereafter, the record was supplemented with the trial court's February 3, 2017 certification of the judgment as final. The rule to show cause was referred to this panel.

         The judgment states:

IT IS ORDERED, ADJUDGED AND DECREED that [the] Motion for Summary Judgment filed by Entergy Louisiana, LLC and Aegis Insurance Services, Ltd. to dismiss the breach of contract claims [asserted by Allan Company] is granted and the claims asserted by [Allan Company], LLC for breach of contract are dismissed.

         After review, we find that the breach of contract claims are distinct from the claims that have not been adjudicated because they do not involve the same issues. There is little, if any, possibility that future developments in the trial court will moot the need for the appellate court to review the summary judgment dismissing the breach of contract claims. We find that the possibility that the reviewing court will have to review the breach of contract claim a second time is non-existent. See R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, 1122-23. Thus, we maintain the appeal.

         STANDARD OF REVIEW

         A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880, 882-883.

         The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966D(1).

         Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in light of the substantive law applicable to the case. Pumphrey v. Harris, 2012-0405 (La.App. ICir. 11/2/12), 111 So.3d 86, 89.

         SUMMARIZED ASSIGNMENTS OF ERROR [7]

         1. The trial court erred in concluding that Entergy was not obligated to repair the damage it caused to the Allan Company's property irrespective of whether Entergy agreed, after contract, to repair the damage.

          2. The trial court erred by making credibility determinations, weighing evidence on disputed facts, and failing to evaluate inferences from undisputed ...


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