Sherryl Benbow Versus Crescent Foundations, LLC, a Plus Construction, LLC, Abc Insurance Company, and Xyz Insurance Company

SHERRYL BENBOW NO. 24-C-426

VERSUS FIFTH CIRCUIT

CRESCENT FOUNDATIONS, LLC, A PLUS COURT OF APPEAL
CONSTRUCTION, LLC, ABC INSURANCE
COMPANY, AND XYZ INSURANCE STATE OF LOUISIANA
COMPANY

October 18, 2024

Linda Wiseman
First Deputy Clerk

IN RE CRESCENT FOUNDATIONS, LLC

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JACQUELINE F.
MALONEY, DIVISION "D", NUMBER 849-422

Panel composed of Judges Jude G. Gravois,
Marc E. Johnson, and Scott U. Schlegel

WRIT DENIED

Relator, Crescent Foundations, LLC, seeks this Court’s supervisory review

of the trial court’s August 15, 2024 judgment which denied Crescent’s motion for

summary judgment, which sought a dismissal of A Plus Construction, LLC’s

cross-claim against Crescent for contractual defense and indemnification. A Plus

filed an opposition thereto in this Court.

A Plus was the general contractor hired by the homeowners at 430 Helios

Avenue in Metairie to build their house. A Plus hired Crescent, a subcontractor, to

drive piles for the foundation. Plaintiff Sherryl Benbow filed suit against Crescent

and A Plus alleging damage to her home at 431 Helios Avenue, allegedly caused

by negligence in pile driving and construction performed by defendants at 430

Helios. A Plus filed a cross-claim against Crescent, alleging that Crescent owed A

Plus contractual defense and indemnification concerning the pile driving activities.

Crescent moved for summary judgment, seeking dismissal of the cross-claim

for contractual defense and indemnification, arguing among other things, that

plaintiff’s claims against defendants sounded in tort, as there was no contractual

relationship between plaintiff and defendants. A Plus opposed the motion, arguing

a history of contractual relationships between the parties, as well as an unsigned

subcontract between the parties that includes an indemnity provision that A Plus

argues was ratified by Crescent by their performance of the pile driving work. A

Plus also argued that plaintiff confirmed in her deposition that her suit against A

Plus was only derivative, as no negligence was alleged on the part of A Plus.

A hearing was conducted on the motion for summary judgment on August

14, 2024, at the conclusion of which the trial court orally denied the motion. A

written judgment to this effect was signed by the court on August 15, 2024. In

separate written reasons for judgment signed on August 27, 2024, while

acknowledging that the purported contract between Crescent and A Plus is

unsigned, the court nevertheless found that an unsigned contract can be tacitly

confirmed and/or ratified through voluntary performance, and Crescent’s voluntary

performance of pile driving work and A Plus’s accepting the benefits of Crescent’s

performance renders the issue of tacit confirmation or ratification of the unsigned

contract a remaining genuine issue of material fact.

“After an opportunity for adequate discovery, a motion for summary

judgment shall be granted if 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.” La. C.C.P. art. 966(A)(3). “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. 966(D)(1).

Appellate courts review summary judgments de novo using the same criteria

that govern the trial court’s determination of whether summary judgment is

appropriate. Thus, appellate courts ask the same questions the trial court does in

determining whether summary judgment is appropriate: whether there is any

genuine issue of material fact, and whether the mover is entitled to judgment as a

matter of law. Migliore v. Ambassador P’ship, LLC, 22-599 (La. App. 5 Cir.

12/1/23), 376 So.3d 1178, 1182.

On the showing made, upon de novo review, we conclude that genuine

issues of material fact remain in this matter and that Crescent is not entitled to

judgment as a matter of law at this time, including whether performance by the

parties concerning the construction project in question constitutes a tacit

confirmation or ratification of the unsigned contract, which includes the indemnity

clause in question, thereby precluding judgment in Crescent’s favor on its motion

for summary judgment at this time. Accordingly, this writ application is denied.

Gretna, Louisiana, this 18th day of October, 2024.

JGG
MEJ
SUS

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 10/18/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-C-426
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Jacqueline F. Maloney (DISTRICT JUDGE)
Danica B. Denny (Respondent) Philip G. Watson (Relator)
Lara J. Jensen (Respondent)
Megan L. LeBlanc (Relator)

MAILED
Denman T. Mims (Respondent)
Attorney at Law
1100 Poydras Street
Suite 3700
New Orleans, LA 70163