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