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

Court of Appeals of Louisiana, First Circuit

July 10, 2019

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 New Orleans, Louisiana Attorney for Plaintiff/Appellant 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, McCLENDON, WELCH, AND CHUTZ, JJ.

          CHUTZ, J.

         This is an appeal from the granting of summary judgment in favor of Entergy Louisiana, LLC and Aegis Insurance Services, Ltd. (Entergy, collectively) and against Allan Company-Golden Meadow, LLC[1] (Allan Company), dismissing Allan Company's claim for restoration damages. For the following reasons, we reverse the summary judgment and remand this matter to the district court.

         FACTS AND PROCEDURAL HISTORY

         Allan Company is a family company that owns approximately 1, 280 acres of marshland south of Golden Meadow, Louisiana. Louisiana Power & Light Company, the predecessor to Entergy, 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. While using marsh buggies and other equipment to carry out emergency repairs in September 2005, Entergy damaged Allan Company's property inside of and adjacent to the right-of-way.

         Entergy also has a 1957 right-of-way agreement with Lafourche Realty Company, Inc. (Lafourche Realty), which owns property adjacent to Allan Company's property. Lafourche Realty's property was likewise damaged while Entergy was performing repair work after Hurricane Katrina.

         Lafourche Realty Company, Inc. and Allan Company filed suit based on the damage to their properties against various Entergy entities, as well as several other entities not involved in this appeal.[2] By subsequent amending petitions, Allan Company members Elizabeth Culver Jahncke, Jeannie Culver Dragon, and John A. Culver were added as plaintiffs and additional defendants were named, including Entergy Louisiana, LLC and Aegis Insurance Services Inc., as the insurer for Entergy. The claims included tort, breach of servitude, breach of contract, [3] and detrimental reliance. The portion of Allan Company's property that was damaged is valued at less than $5, 000.00. The estimated cost of Allan Company's restoration plan exceeds $3 million.

         In response to various pretrial motions, the district court ruled that Allan Company's claim for restoration costs, whether based on servitude law or tort law, would follow the criteria set out in Roman Catholic Church of the Archdiocese of New Orleans v. Louisiana Gas Service Company, 618 So.2d 874, 879-880 (La. 1993). The district court signed a written judgment in accordance with that ruling on September 5, 2014. Subsequently, Entergy filed a motion for summary judgment seeking to dismiss Allan Company's claim for restoration damages under Roman Catholic Church [4] Following a hearing, the district court granted Entergy's motion for summary judgment and by judgment signed on November 30, 2016, dismissed Allan Company's claim for restoration damages. Allan Company now appeals.

         SHOW CAUSE

         This court issued a rule to show cause order ex proprio motu on June 21, 2017, noting that the November 30, 2016 judgment appeared to be a partial judgment, as it did not dispose of all the claims and issues in the case and, moreover, 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. Lafourche Realty Company, Inc. v. Entergy Louisiana, Inc., 17-0849 (La.App. 1st Cir. 6/21/17) (unpublished).

         Thereafter, the appellate record was supplemented with an order of the district court designating the judgment as final and appealable, with written reasons. The rule to show cause was referred to this appeal panel. Lafourche Realty Company, Inc. v. Entergy Louisiana, Inc., 17-0849 (La.App. 1st Cir. 10/27/17) (unpublished).

The district court's November 30, 2016 judgment states:
The only remaining defendants in this motion are Entergy Louisiana, LLC and Aegis Insurance Services, Ltd.
The Court, considering the evidence, memoranda and the law, renders the following Judgment. The Court finds that (1) the restoration damages are grossly disproportionate to the value of the damaged property; (2) The Allan Company has no personal reasons for repairing the damage; and (3) The Allan Company will not likely repair the property as contemplated by their restoration plan.
IT IS ORDERED[, ] ADJUDGED AND DECREED that Entergy'[s] Motion for Summary Judgment is hereby granted, and any and all claims by Plaintiff, The Allan Company for "restoration damages" against the Defendants in this case are dismissed.

         In designating the partial judgment as final and appealable under Article 1915(B), the district court determined that there was no just reason to delay the appeal. The district court further concluded that Allan Company's restoration claim was distinct from the remaining unadjudicated claims because the restoration claim did not involve the same issues. The district court believed there was little, if any, possibility that future developments would moot the need for the appellate court to review the instant partial summary judgment. Additionally, the district court found the possibility of the appellate court having to review the issues related to the restoration claim a second time was non-existent.

         Because the district court gave explicit reasons for designating the judgment as final for appeal purposes, an abuse of discretion standard is applicable to the court's determination of finality. R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 1113, 1123. After review of the designation of finality in light of the factors delineated in Messinger, we find no abuse of discretion in the district court's order. Thus, we maintain the appeal.

         ASSIGNMENTS ...


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