Le Reve Bocage, LLC v. Hurricane Work, LLC

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 1319

LE REVE BOCAGE, LLC

VERSUS

HURRICANE WORK, LLC

R14
Judgment Rendered:

On Appeal from the Twenty -Third Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Docket No. 136299

Honorable Melvin C. Zeno, Judge Presiding

Evelyn I. Breithaupt Counsel for Plaintiff/ Appellee
Edward E. Rundell Le Reve Bocage, LLC
Alexandria, Louisiana
and-

Mark A. Marionneaux
G. Trippe Hawthorne
Jeffrey N. Boudreaux
Katie D. Bell
Forrest E. Guedry
Baton Rouge, Louisiana

Martin K. Maley, Sr. Counsel for Defendant/ Appellant
Stephen M. Irving Hurricane Work, LLC
Baton Rouge, Louisiana

BEFORE: McCLENDON, WELCH,, AND LANIER, 33.

McCLENDON, J.

In this case involving a lease agreement, the defendant appeals a judgment of the

trial court granting summary judgment in favor of the plaintiff, denying the defendant's
motion for summary judgment, and declaring the lease agreement limited to a certain
project. For the following reasons, we affirm the trial court's judgment.
L '. -, a • .

Le Reve Bocage, LLC ( Bocage) entered into a Lease Agreement with Hurricane

Work, LLC ( Hurricane) for the purpose of excavating and mining of dirt, soils, and

materials ( clay and dirt) for use in levee construction and repair from approximately sixty

acres of immovable property owned by Bocage located in Ascension Parish, Louisiana.

The Lease Agreement became effective on September 28, 2020, and contained a

provision that it "shall continue for a period of four ( 4) years from the Effective Date, or

the end of the levee construction for the West Shore Lake Pontchartrain project,

whichever is first to occur." Sometime after the effective date of the Lease Agreement,

a dispute arose over its interpretation.

On February 10, 2023, Bocage filed a Petition for Declaratory Judgment against

Hurricane, seeking a judgment declaring that the Lease Agreement allowed Hurricane to

extract and sell the clay and dirt for use in only the West Shore Lake Pontchartrain project.

After filing an answer to Bocage' s petition, Hurricane filed a motion for summary

judgment. Therein, Hurricane asserted that the provisions of the Lease Agreement

allowed it to sell clay and dirt for other projects. Shortly thereafter, Bocage filed its own

motion for summary judgment, seeking a declaration limiting the sale of clay and dirt to
the West Shore Lake Pontchartrain project. Hurricane also moved for leave to file a

reconventional demand for damages against Bocage, and on June 5, 2023, was granted

leave to file its reconventional demand.

On June 12, 2023, the trial court heard the motions for summary judgment and

took the matter under advisement. On July 25, 2023, the trial court issued Reasons for

Judgment, and on August 9, 2023, signed its judgment. Said judgment granted Bocage's

I The West Shore Lake Pontchartrain project was a U. S. Army Corps of Engineers levee project with a
tentative schedule from 2020 through 2023.

061

motion for summary judgment and declared that the Lease Agreement was limited to the

mining and sale of clay and dirt from the Bocage property exclusively for sale and use on
the West Shore Lake Pontchartrain project and for no other levee projects. The judgment

also denied Hurricane' s motion for summary judgment; dismissed Hurricane' s

reconventional demand, stating that the ruling on the declaratory judgment was

dispositive of the reconventional demand; and provided that the matter was designated

as a final judgment as to all claims.

Hurricane appealed the August 9, 2023 judgment, asserting several assignments

of error.2 Hurricane challenges the trial court's grant of Bocage's motion for summary

judgment, the denial of its motion for summary judgment,3 and the dismissal of its

reconventional demand for damages.

DISCUSSI© N

A motion for summary judgment is a procedural device used to avoid a full- scale

trial when there is no genuine issue of material fact.4 Cypress Heights Academy v.

CHA Investors, LLC, 2021- 0820 ( La. App. 1 Cir. 6/ 7/ 22), 343 So. 3d 736, 741, writs

denied, 2022- 01284, 2022- 01247 ( La. 11/ 8/ 22), 349 So. 3d 574, 576. A motion for

summary judgment is properly granted if, after an opportunity for adequate discovery,

the motion, memorandum, and supporting documents show that there is no genuine

issue as to material fact and that the mover is entitled to judgment as a matter of law.

LSA- C. C. P. art. 966( A)( 3).

2
Specifically, Hurricane averred that the trial court erred 1) by finding that the Lease Agreement was
ambiguous; 2) in interpreting the Lease Agreement against Hurricane when the evidence showed that both
parties edited the Lease Agreement; 3) by finding that Claude Klein was a representative or agent of
Hurricane and further relying on disputed extrinsic evidence to grant Bocage' s motion for summary
judgment; 4) by failing to grant Hurricane's motion for summary judgment; and 5) by dismissing the
reconventional demand for damages filed by Hurricane.

3 As part of its appeal, Hurricane contends that the trial court erred in denying its motion for summary
judgment. Although the denial of a motion for summary judgment is an interlocutory judgment and is
appealable only when expressly provided by law, where there are cross motions for summary judgment
raising the same issues, as in this case, this court can review the denial of a summary judgment in
addressing the appeal of the granting of the cross motion for summary judgment. Allen v. Southwest
Builders, L. L.C., 2022- 1344 ( La. App. 1 Cir. 8/ 24/ 23), 372 So. 3d 32, 34 n. l.

4 Although the Legislature recently amended LSA-C. C. P. art. 966, which governs summary judgments, the
relevant amendment is not applicable to the instant appeal. See 2023 La. Acts No. 317, § 1 ( eff. Aug. 1,
2023) and 2023 La. Acts No. 368, § 1 ( eff. Aug. 1, 2023); Ricketson v. McKenzie, 2023- 0314 ( La. App.
1 Cir. 10/ 4/ 23), 380 So. 3d 1, 8- 11 ( concluding 2023 La. Acts No. 317, § 1 was a substantive amendment
and could not be retroactively applied), Accordingly, we apply the version of LSA- C. C. P. art. 966 in effect
on June 12, 2023, the date of the summary judgment hearing herein. See McDonald v. D' Amico, 2023-
0884 ( La. App. 1 Cir. 3/ 22/ 24), 385 So. 3d 1162, 1166 n. 6, writ denied, 2024- 00444 ( La. 6/ 19/ 24), 386
So. 3d 674.

3

A parry may seek declaratory judgment through the summary judgment

procedure. Cypress Heights Academy, 343 So. 3d at 742. The decision to grant or

deny declaratory relief is left to the wide discretion of the trial court. Although this

decision is subject to an abuse of discretion standard of review, the judgment itself is still

reviewed under the appropriate standard of review. Sebble on Behalf of Estate of

Brown v. St. Luke' s # 2, LLC, 2023- 00483 ( La. 10/ 20/ 23), 379 So. 3d 615, 618. In

determining whether summary judgment is appropriate, appellate courts review evidence

de novo under the same criteria that govern the trial court's determination of whether

summary judgment is appropriate. Id.

The proper interpretation of a contract is a question of law subject to de novo

review on appeal. When considering legal issues, the reviewing court accords no special

weight to the trial court, but conducts a de novo review of questions of law and renders

judgment on the record. Louisiana Machinery Co., LLC v. Bihm Equipment Co.,

2019- 1081 ( La. App. 1 Cir. 8/ 10/ 21), 329 So. 3d 317, 321. Thus, we use the same criteria

that govern the trial court's consideration of whether summary judgment is appropriate.

Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 2012- 2055 ( La. 3/ 19/ 13),

112 So. 3d 187, 192.

Contracts have the effect of law for the parties and the interpretation of a contract

is the determination of the common intent of the parties. LSA- C. C. arts. 1983 and 2045.

The reasonable intention of the parties to a contract is to be sought by examining the

words of the contract itself, and not assumed. Clovelly Oil Co., LLC, 112 So. 3d at 192.

When the words of a contract are clear and explicit and lead to no absurd

consequences, no further interpretation may be made in search of the parties' intent.

LSA- C. C. art. 2046. Common intent is determined, therefore, in accordance with the

general, ordinary, plain and popular meaning of the words used in the contract. Clovelly

Oil Co., LLC, 112 So. 3d at 192. Accordingly, when a clause in a contract is clear and

unambiguous, the letter of that clause should not be disregarded under the pretext of

pursuing its spirit, as it is not the duty of the courts to bend the meaning of the words of

a contract into harmony with a supposed reasonable intention of the parties. Id.

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Nevertheless, as a general rule, a contract is ambiguous if, after applying the

established rules of contract interpretation, the contract is uncertain as to the parties'

intent and susceptible to more than one reasonable interpretation under the

circumstances. St. Romain v. Delta Southern Co., Inc., 2022- 0111 ( La.App. 1 Cir.

9/ 22/ 22, 353 So. 3d 778, 784, writ denied., 2022- 01569 ( La. 4/ 25/ 23), 359 So. 3d 980. If

a court determines as a matter of law that a contract is ambiguous, then extrinsic

evidence may be used to determine the true intent of the parties, and determining the

intent of the parties becomes, in part, a question of fact inappropriate for summary

judgment unless there is " no genuine issue as to material fact." SRG Baton Rouge II.,

L. L. C. v. Patten/ Jenkins BR Popeye' s, L. L. C., 2023- 1204 ( La. App. 1 Cir. 5/ 31/ 24),

So. 3d , _ ( 2024 WL 2795052, * 6); LSA- C. C. P. art. 966( A)( 3).

In its appeal, Hurricane argues that the trial court erred in failing to find that the

Lease Agreement was unambiguous, thereby limiting the interpretation of the agreement

to its four corners without the consideration of extrinsic evidence, as the clear and concise

language of the Lease Agreement established that the sale of the clay was not limited to

the West Shore Lake Pontchartrain project. To the contrary, Bocage maintains that the

trial court correctly determined that the Lease Agreement was ambiguous subject to

varying and conflicting interpretations. Therefore, Bocage asserts, the trial court correctly

looked beyond the four corners of the Lease Agreement to determine the common intent

of the parties.

In support of its motion for summary judgment, Bocage attached the Lease

Agreement; the affidavit of Marion M. Rundell, individually and as manager of Bocage,

with the Lease Agreement attached; and the U. S. Army Corps of Engineers St. John the

Baptist Parish Contractor Industry Day, West Shore Lake Pontchartrain publication of

September 18, 2019. 5 In opposition to Bocage' s motion for summary judgment,

Hurricane submitted the affidavit of Jack Singleton, the owner and manager of Hurricane.

Thirty-five exhibits were attached to Mr. Singleton' s affidavit, including the Lease

Agreement.

5 We note that Hurricane did not object to the evidence offered by Bocage in support of its motion for
summary judgment.

0

Thus, as a threshold question, we must determine whether the Lease Agreement

is clear or whether it is ambiguous. In this regard, we note that Paragraph 2, which sets

forth the Term of Agreement, provides, in full:

The Agreement period begins on the Effective date of this Agreement
and shall continue for a period of four ( 4) years from the Effective Date, or
the end of the levee construction for the West Shore Lake Pontchartrain
project, whichever is first to occur. Notwithstanding the foregoing, this
Agreement shall immediately terminate, with Landlord and Tenant owing
no other duties to each other, if the dirt, soils, and materials on the Property
are non -certifiable, for purposes of levee construction, according to the
requirements and standards of the United States Army Corps of Engineers,
or if Tenant is not able to obtain necessary permits, licenses and contracts
to supply dirt, soils, and materials from the Property for the purpose of
levee construction.

Hurricane points out that the only mention in the Lease Agreement of the West

Shore Lake Pontchartrain project is in this paragraph, which it argues does not prevent

the sale of the dirt and clay to other projects. Hurricane also refers to other provisions

of the Lease Agreement, which, according to Hurricane, do not limit the sale of the dirt

and clay, but rather, indicate that sales to other parties were clearly allowed. For

example, in Paragraph 1, Description of the Property, the Lease Agreement provides, in

pertinent part that " Landlord leases to Tenant, for the purpose of excavating, mining,

processing, and stockpiling dirt, soils, and materials for use in levee construction and

repair that certain real property consisting of approximately 60 acres, more or less,

located in Ascension [ Parish], Louisiana." Hurricane maintains that this language does

not limit the use of the dirt and clay to levee construction, but rather includes repair,

which would be inconsistent with limiting the clay for construction of the West Shore Lake

Pontchartrain project.

Hurricane also refers to Paragraph 10, Production Efforts, of the Lease Agreement,

which provides that " Tenant warrants and promises that Tenant will employ its best

efforts to maximize its production consistent with the purpose of this Agreement and to

provide maximum income in the best interests of Landlord." Hurricane contends that it

would clearly maximize income to Bocage under the Lease Agreement for Hurricane to

sell the dirt and clay to additional projects. Hurricane points to the beginning of

Paragraph 11, regarding Use, as well, which provides that "[ t] he property may only be

used for business operations associated with the excavation, mining, processing, storing,

0

and moving of dirt, soils, and other materials." Hurricane suggests that language could

have been added to the Lease Agreement limiting the use of the clay and dirt, but was

not.6

Additionally, Hurricane refers to the last sentence of Paragraph 4, Compensation,

which states that "Tenant shall disclose to Landlord the name and address of each party

to whom Tenant sells any of the dirt, soils, and materials remove[ d] from the Property."

Hurricane maintains that this clause would be completely unnecessary if the Lease

Agreement was limited to only the construction of the West Shore Lake Pontchartrain

project and, instead, envisions multiple buyers not known at the time of the signing.

Hurricane avers that all of these provisions must be given effect, and considering the

document as a whole, it argues that the clear and unambiguous language of the Lease

Agreement established the intent of the parties that the sale of the dirt and clay was not

limited to the West Shore Lake Pontchartrain project.

To the contrary, Bocage originally argued at the trial court that the paragraph

limiting the sale of clay and dirt to the West Shore Lake Pontchartrain project clearly

establishes the parties` intent. Bocage further asserted that none of the other paragraphs

in the Lease Agreement are inconsistent with Paragraph 2, as those paragraphs simply

limit the Lease Agreement to the West Shore Lake Pontchartrain project. Following the

trial court's decision, Bocage now argues on appeal that the trial court correctly found

ambiguity in the Lease Agreement, permitting it to look at extrinsic evidence for the

parties' intent, with the alternative argument that the Lease Agreement was clear and

unambiguous.

After a thorough review of the Lease Agreement and application of the rules of

contract interpretation, we find the Lease Agreement is unclear and susceptible to more

than one reasonable interpretation as to whether it is limited to the West Shore Lake

Pontchartrain project. Therefore, it is necessary to resort to the parties' intent and

understanding outside of the four corners of the agreement.

6 We note that Hurricane drafted the original agreement, and Bocage incorporated some revisions, to
which Hurricane agreed.

VA

Although summary judgment is rarely appropriate for a determination based on
subjective facts such as intent, motive, malice, knowledge or good faith, a trial court may

grant summary judgment based on an intent issue when there is no genuine issue of

material fact concerning the pertinent intent. Cypress Heights Academy, 343 So. 3d

at 745. However, the law is well settled that a trial court cannot make credibility

determinations, evaluate testimony, or weigh conflicting evidence in making its decision

whether to grant or deny a motion for summary judgment. Id.

Our careful de novo review of the record on summary judgment supports the trial

court's determination that there was no genuine issue of material fact that both parties

intended to limit the sale of dirt and clay by Bocage to Hurricane to the West Shore Lake

Pontchartrain project.

Bocage contends that throughout the negotiations and preparation of the Lease

Agreement, the parties understood and agreed that the Lease Agreement was limited to

the mining of clay and dirt for the construction of the West Shore Lake Pontchartrain
project. In support of this contention, Bocage offered Mr. Rundell' s affidavit. Mr. Rundell

attested that at all times it was understood and agreed that the Lease Agreement was

limited to mining. of clay and dirt for construction of the West Shore Lake Pontchartrain

project. He further stated that as the manager of Bocage, he had personal knowledge

that on February 16, 2022, John " Art" Singleton, Jr., counsel for Hurricane, sent an email

to Bocage through its counsel stating that "[ p] er the terms of the Lease Agreement, the

clay on the property is to be used for construction of the West Shore Lake Pontchartrain
project." The email was attached to Mr. Rundell' s affidavit.' The email further provided

that Hurricane had an immediate opportunity to utilize the clay and dirt on other levee

enhancement projects separate and apart from the West Shore Lake Pontchartrain

project, and Hurricane sought permission from Bocage to mine clay from the Bocage

property for the other projects, " subject to all other terms and conditions as contained in

the Lease Agreement."

This email was also attached as an exhibit to Jack Singleton' s affidavit, submitted by Hurricane in
opposition to Bocage' s motion for summary judgment.

Mr. Rundell also attested that Claude Klein, on behalf of Hurricane, left him a

voicemail message the same day as receipt of Art Singleton' s email, seeking consent for

Hurricane to sell clay from the Bocage property for other levee projects and

acknowledging that the Lease Agreement only allowed the sale of the clay for the West

Shore Lake Pontchartrain project. Mr. Rundell stated that later that morning, Mr. Klein

texted him regarding the permission requested in the earlier voicemail, to which Mr.

Rundell responded in the negative.

The documents offered by Bocage in support of its motion for summary judgment

established the parties' intent to limit the sale of the dirt and clay from the Bocage

property to the construction of the West Shore Lake Pontchartrain project. Thus, Bocage

carried its initial burden on its motion for summary judgment. Having so determined, the

burden shifted to Hurricane to produce factual support sufficient to establish the existence

of a genuine issue of material fact or that Bocage was not entitled to judgment as a

matter of law. See LSA- C. C. P. art. 966( D)( 1).

In opposition to Bocage' s motion for summary judgment, Hurricane offered the

affidavit of .lack Singleton, Hurricane' s owner and manager, wherein he attested that

there was no discussion or agreement during the negotiation and execution of the Lease

Agreement between Hurricane and Bocage that the lease would be limited to the West

Shore Lake Pontchartrain project.$ Jack Singleton stated that limiting the lease to

supplying clay to the West Shore Lake Pontchartrain project was not a condition that

Hurricane would ever have accepted in the lease. Thirty-five exhibits were attached to

Jack Singleton' s affidavit, consisting of copies of authentic business records of Hurricane

primarily made up of communications reflecting the business dealings between Hurricane

and Bocage during the period at issue. However, lack Singleton' s affidavit is inconsistent

with the February 16, 2022 email sent by Art Singleton, Hurricane' s counsel,

acknowledging that the Lease Agreement was limited to the West Shore Lake

Pontchartrain project and asking permission to use the clay and dirt from the Bocage

8 In support of its own motion for summary judgment, Hurricane offered an earlier affidavit by Jack
Singleton, which did not make any mention of the parties' intent in the Lease Agreement, together with
the Petition for Declaratory Judgment and the Lease Agreement. In opposition to Hurricane's motion for
summary judgment, Bocage offered the same evidence it offered in support of its own motion, with the
addition of a project fact sheet.

9

property for another project. Likewise, a certified letter, dated February 23, 2022, sent

to Bocage by Art Singleton, asked whether Bocage was agreeable to Hurricane utilizing

and selling the clay and dirt from the Bocage property to service other levee improvement

projects, and further provided, if Bocage declined, Hurricane would look elsewhere for its

clay needs to service other levee projects.9 Thus, Hurricane's own exhibits, which were

attached to Jack Singleton' s affidavit, clearly support Bocage's position.

Additionally, Jack Singleton' s affidavit, signed on May 26, 2023, is well after the

earlier February 16, 2022 email and the February 23, 2022 certified letter, both sent by

the attorney for Hurricane, wherein Hurricane requested permission to sell the clay and

dirt to other projects. Jack Singleton did not offer any explanation for this apparent

inconsistency, and we find that his subsequent self-serving affidavit was not sufficient

evidence to create a genuine issue of material fact precluding summary judgment.

Therefore, we find that the evidence offered in support of and in opposition to

Bocage' s motion for summary judgment established both parties' mutual understanding

and clear intent to limit the mining and sale of the dirt and clay by Hurricane from the

Bocage property to the West Shore Lake Pontchartrain project only. Hurricane failed to

present sufficient evidence creating a genuine issue of material fact that the parties

intended to sell the clay and dirt for other projects. Accordingly, we can find no merit to

Hurricane' s assignments of error, and Bocage was entitled to summary judgment as a

matter of law, declaring that the Lease agreement was limited to the West Shore Lake

Pontchartrain project. lo

9 The pertinent portion of the letter provided:

Also, please be advised that Hurricane Work has an immediate need for clay to
service other levee improvement project( s) separate and apart from the West Shore Lake
Pontchartrain project. Please confirm within five ( 5) days from the receipt of this letter
whether you are agreeable to Hurricane Work utilizing and selling clay from the Bocage
property to service these other levee improvement projects, subject to all other terms and
conditions as contained in the Lease Agreement.
I] f you fail to respond within five ( 5) days from the receipt of this letter, then
Hurricane Work will consider your failure to respond as a negative response. In this event,
Hurricane Work will look elsewhere for its clay needs to service these other levee
improvement project( s).

io As Bocage established that it was entitled to summary judgment as a matter of law, declaring that the
Lease Agreement was limited to the mining and sale of clay and dirt from the Bocage property exclusively
for sale and use on the West Shore Lake Pontchartrain project and for no other levee projects, the trial
court's denial of Hurricane's motion for summary judgment was proper, as was the dismissal of Hurricane' s
reconventional demand.

all

CONCLUSION

For the foregoing reasons, the August 9, 2023 judgment of the trial court is

affirmed. All costs of this appeal are assessed to Hurricane Works, LLC.

AFFIRMED.

11