LAFOURCHE REALTY COMPANY, INC. AND THE ALLAN COMPANY
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,
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.
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 (hereafter Allan
Company), dismissing Allan Company's claims for breach of
contract. After a de novo review, we
AND PROCEDURAL HISTORY
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.
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.
September 1, 2006, plaintiffs, Lafourche Realty Company,
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.,  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),
Marsh Buggies, Inc., Frogco Rentals, LLC, Frogco Amphibious
Equipment, Inc., and Alea London, Ltd (insurer for the Frogco
companies). 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,
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.
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.
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
RULE TO SHOW CAUSE
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,
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.
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
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.
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.
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.
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.
ASSIGNMENTS OF ERROR 
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.
trial court erred by making credibility determinations,
weighing evidence on disputed facts, and failing to evaluate
inferences from undisputed ...