Tombigbee Electric Cooperative Inc v. Shelton Energy Solutions LLC

Filing 125

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 9/25/2024. (MEB2)

FILED
2024 Sep-25 PM 02:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
TOMBIGBEE ELECTRIC
COOPERATIVE, INC.,

)
)
)
Plaintiff,
)
7:22-cv-01204-LSC
v.
)
)
SHELTON ENERGY
)
SOLUTIONS, LLC,
)
)
Defendant.
)
)
MEMORANDUM OF OPINION
Before the Court are Plaintiff Tombigbee Electric Cooperative’s Motion for
Summary Judgment (Doc. 93) and Defendant Shelton Energy Solution, LLC’s
Motion for Partial Summary Judgment (Doc. 91). For the reasons stated below,
Plaintiff’s Motion for Summary Judgment is due to be DENIED and Defendant’s
Motion for Partial Summary Judgment is due to be DENIED. Also before the Court
are Plaintiff’s Motion to Strike (Doc. 97) and Defendant’s Motions to Strike (Docs.
96, 120.) For the reasons stated below, Plaintiff’s Motion to Strike is due to be
DENIED, Defendant’s first Motion to Strike (Doc. 96) is due to be DENIED in part
and GRANTED in part, and Defendant’s second Motion to Strike (Doc. 120) is due
to be DENIED.

Page 1 of 55

I.

BACKGROUND1
Citizens of Vernon, Alabama incorporated Tombigbee Electric Cooperative

(“TB-Elec”) in 1941 to provide power to members in Marion, Fayette, and Lamar
counties. (Doc. 93 ¶ 3.) TB-Elec now provides electricity to approximately 10,000
Alabama residents. (Id.) TB-Elec’s wholly-owned subsidiary, Tombigbee
Communications, LLC (“TB-Comm”)2 provides “fiber-to-the-home broadband
internet services” to around 15,000 residents of Marion, Fayette, Lamar, Franklin,
Winston, and Walker counties. (Doc. 53 ¶ 15.) TB-Elec and TB-Comm both operate
out of the same office in Hamilton, Alabama, and have the same CEO, CFO, and
“other executives.” (Doc. 93 ¶ 15.) Additionally, “Tombigbee’s Board of Trustees
makes decisions for both TB-Elec and TB-Comm.” (Id.)
TB-Elec owns the power poles and electrical lines it uses to supply electricity
to its customers, as well as the “fiber cables or lines” TB-Comm uses to provide
internet services. (Id. ¶ 5.) TB-Comm leases these fiber cables from TB-Elec. (Id.)
TB-Elec has entered into contracts called “joint use agreements” or “pole attachment
agreements”

with

other

entities

such

as

1

AT&T,

Centurylink,

Charter

The facts set out in this opinion are gleaned from the parties' submissions of facts claimed to be undisputed, their
respective responses to those submissions, and the Court's own examination of the evidentiary record. These are the
“facts” for summary judgment purposes only. They may not be the actual facts. See Cox v. Adm'r U.S. Steel &
Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994). The Court is not required to identify unreferenced
evidence supporting a party's position. As such, review is limited to exhibits and specific portions of the exhibits
specifically cited by the parties. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011)
(“[D]istrict court judges are not required to ferret out delectable facts buried in a massive record….”).
2
SES refers to TB-Comm as “Freedom Fiber” in its briefs and some of the filed exhibits.

Page 2 of 55

Communications, and Bevill State Community College to allow them to make
“attachments” to TB-Elec’s poles. (Id. ¶ 70.) Defendant’s expert consultant defines
“attachment” as “any non-power connection or appendage to a pole (e.g., cable or
fiber, communication equipment).” (Doc. 91-35 ¶ 6.) Within this industry, the
entities that own an “attachment” to another entity’s power pole are referred to as
“attachers.” (Doc. 55 at 18.)
Defendant Shelton Energy Solutions, LLC (“SES”) is a Louisiana limited
liability company that provides “transmission, distribution, substation and
renewable maintenance services.” (Id. ¶¶ 2, 16.) During the time relevant to the
issues in this matter, SES also conducted “Joint Use” work. (Doc. 93 ¶ 12.) Joint use
work involves “permitting, structural analysis of poles, safety audits, attachment
audits, pole attachment contract negotiations between telephone or cable companies
and power companies, and street light audits.” (Id. ¶ 14.) SES “hired several
employees of Volt Power, LLC” (“Volt”), a company that also conducts joint use
work. (Id. ¶ 21); (Doc. 108 ¶ 21). One such employee, Eric Deville, worked on an
“attachment audit” for TB-Elec during his employment at Volt. (Doc. 93 ¶ 24.) An
attachment audit is an audit of “each and every attachment to the poles regardless of
who owns the attachments.” (Id. ¶ 25.)
In January 2021, shortly after Mr. Deville began working for SES, TB-Elec and
SES began discussing the possibility of SES performing a safety audit for TB-Elec.
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(Id. ¶ 35.) Safety audits differ from attachment audits in that they involve only the
inspection of third-party companies’ attachments to poles to ensure that the third
parties are in compliance with applicable regulations. (Id. ¶ 25.) On January 13th,
2021, Mr. Deville sent an email to TB-Elec containing a Professional Services
Agreement (“2021 PSA”). (Doc. 53 ¶ 21.) In the email, Mr. Deville stated, “This
PSA is for us to do the permitting and Safety audits. Remember this is a free service
to Tombigbee Elect[r]ic.” (Doc. 94-8.) The 2021 PSA had already been signed by
SES, but TB-Elec never signed it. (Doc. 53 ¶ 21.) However, TB-Elec “allowed SES
to proceed with the proposed safety audit.” (Doc. 106 at 31.)
SES terminated Mr. Deville’s employment in September 2021. (Doc. 93 at
21.) Gary Guin replaced Mr. Deville in SES’ joint use division. (Id. ¶ 63.) In
February 2022, Mr. Guin realized that the 2021 PSA had never been signed. (Id. ¶
64.) Mr. Guin then contacted TB-Elec employee Mark Carden to discuss the
execution of a revised PSA (doc. 94-9 at 49, 55-56), and the remaining work to be
done on the safety audit. (Doc. 93 ¶ 65.) On March 10, 2022, Mr. Guin and fellow
SES employees Jessica Fuqua and Callie Howard met with TB-Elec’s then-CEO
Steve Foshee, CFO Matilda Harrison, and Mark Carden at TB-Elec’s headquarters
to discuss the remaining work on the safety audit. (Doc. 55 ¶ 27.) That same day,
Ms. Fuqua emailed Ms. Harrison asking for the contact information of TB-Elec’s
attachers and the contracts between TB-Elec and its attachers. (Doc. 93 ¶ 69.) Ms.
Page 4 of 55

Harrison replied with the contact information for AT&T, Alabama Power, Bevill
State, CenturyLink, Charter Communications, and Frontier. (Id. ¶ 70.)
On April 4, 2022, Mr. Guin emailed a new Professional Services Agreement
(“2022 PSA”) to Mr. Carden and Ms. Harrison. (Id. ¶ 74.) Mr. Carden emailed the
2022 PSA, signed by TB-Elec, back to Mr. Guin on April 26, 2022. (Id. ¶ 82.) SES
began sending “findings” from the safety audit on April 21, 2022. (Doc. 108 ¶ 86.)
On July 14, 2022, SES sent an email to TB-Elec, TB-Comm, AT&T, Charter
Communications, CenturyLink, and Bevill State containing invoices and data from
the safety audit. (Doc. 95-13.)3 The invoices included $814,381.10 in charges
attributable to TB-Comm. (Doc. 55 at Counterclaim ¶ 22.)
The 2022 PSA provided that attachers would be invoiced based on their
percentage of the “total violations” found in the safety audit, and that if the attachers
did not pay their invoices within 90 days, TB-Elec would be required to make those
payments. (Doc. 53-5 at 6.) To date, neither TB-Elec, TB-Comm, nor any of the
listed attachers have paid their invoices to SES.
Before the 90-day period lapsed, TB-Elec filed claims for breach of contract,
fraud, gross negligence, and willful misconduct against SES. (Doc. 53.) TB-Elec’s
Complaint also seeks declaratory judgments interpreting the terms of the 2022 PSA,

3

SES sent an invoice for $184,462.91 in charges to CenturyLink, $10,589.40 to AT&T, $170,112.34 to Charter
Communications, and $141.22 to Bevill State. (Doc. 55 ¶ 33-37.)

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determining whether TB-Elec can be held liable for its failure to pay SES, and
determining whether the 2022 PSA is void or voidable. (Id.) SES filed counterclaims
for breach of contract. (Doc. 55.)
II.

MOTIONS TO STRIKE
Before considering the parties’ Motions for Summary Judgment, the Court

must address three Motions to Strike.
A. TB-Elec’s Motion to Strike SES’ Motion for Partial Summary
Judgment
First, Plaintiff TB-Elec moves to strike Defendant SES’ Motion for Partial
Summary Judgment. (Doc. 97.) The parties initially filed their cross-motions for
summary judgment on November 16, 2023. (Docs. 70, 71.) However, on December
5, 2023, the motions were denied in light of the parties’ decision to pursue mediation.
(Doc. 82.) The parties were “granted leave to reassert their motions as currently
filed” if mediation efforts were unsuccessful. (Id.) After mediation efforts failed,
SES refiled its Motion for Partial Summary Judgment on January 1, 2024. (Doc. 911.) TB-Elec subsequently moved to strike SES’ refiled motion, arguing that it differs
slightly from the original. (Doc. 97.) SES attached the contract between Volt and
TB-Elec as an exhibit to the refiled motion (doc. 91-42), added a footnote (doc. 911 at 17 n.16), and underlined and bolded a phrase (id. at 17), but the refiled motion
is otherwise identical to the original. (See doc. 70).

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SES referenced the Volt contract in its original motion, but could not attach it
as an exhibit because TB-Elec did not produce the Volt contract until the Court
ordered it to do so on December 5, 2023. (Doc. 81.) The added footnote contains
additional case citations to support SES’ choice of law argument; otherwise, the
footnote makes no substantive changes to the argument. Underlining and bolding a
phrase also is not a substantive change to SES’ argument. Because these changes are
minimal and do not unduly prejudice TB-Elec, TB-Elec’s Motion to Strike is
DENIED.
B. SES’ Motion to Strike the Williams and Charter Affidavits
SES has moved to strike the Affidavit of James Williams and the Affidavit of
Charter Communications (doc. 96), both of which are cited by TB-Elec in its Motion
for Summary Judgment. (Doc. 93.) This second Motion to Strike is due to be
GRANTED in part and DENIED in part. Because the Court does not rely on or refer
to the Williams Affidavit in rendering its opinion on summary judgment, SES’
Motion to Strike the Williams Affidavit is DENIED as moot.
SES moves to strike the Charter Affidavit on the grounds that TB-Elec did not
produce the affidavit in response to SES’ discovery requests. (Doc. 96-1 at 8.) “On
or about February 23, 2023” (doc. 96-1 at 8), TB-Elec issued a subpoena to Charter
Communications requesting “any and all documents arising out of or related to
[SES’] audit(s) of [Charter’s] attachments to [TB-Elec’s] poles” and “any and all
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communications between [Charter], [SES], and/or [TB-Elec] arising out of or related
to [SES’] audits of [Charter’s] attachments to [TB-Elec’s] poles.” (Doc. 96-4 at 5).
On July 28, 2023, Charter responded with an affidavit stating it was “unable to locate
any documents, records, information, or correspondence in the possession or control
of Charter that are responsive” to TB-Elec’s subpoena. (Doc. 96-3.)
On February 22, 2023, SES requested TB-Elec “[p]roduce all Documents,
Tangible Evidence, and Communications in [its] care, custody, or control related to
Paragraph 34 of [TB-Elec’s] First Amended Complaint.” (Doc. 96-5 at 10.)
Paragraph 34 alleges, among other things, that SES breached the 2022 PSA by
failing to notify TB-Elec’s attachers about the safety audit. (Id. at 10.) TB-Elec did
not produce the Charter Affidavit as a discovery response (doc. 96-1 at 9), but cites
the affidavit in its Motion for Summary Judgment as evidence that SES did not notify
the attachers. (Doc. 93 ¶ 50.)
SES argues that under Federal Rule of Civil Procedure 37(c), TB-Elec may
not use the Charter affidavit as evidence on its Motion for Summary Judgment
because it failed to produce the affidavit as a supplement to its previous discovery
responses. (Doc. 121 at 4.) TB-Elec argues that it complied with Rule 45’s
requirement that “before [a subpoena] is served on the person to whom it is directed,
a notice and a copy of the subpoena must be served on each party.” Fed. R. Civ. P.
45(a)(4). The Advisory Committee Notes to Rule 45 provide that “Parties desiring
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access to information produced in response to the subpoena will need to follow up
with the party serving it or the person served to obtain such access.” Fed. R. Civ. P.
45. Therefore, TB-Elec claims it was not required to provide the Charter Affidavit
absent a subsequent request from SES. (Doc. 112 at 7.)
In an abundance of caution, the Court GRANTS SES’ Motion to Strike the
Affidavit of Charter Communications. However, striking the Charter Affidavit does
not affect the Court’s ruling on the parties’ cross-Motions for Summary Judgment.
Even without considering the Charter Affidavit, the record evidence still creates a
genuine issue of material fact as to whether SES notified the attachers of the safety
audit.
C. SES’ Motion to Strike the Lightsey Declaration
The next motion before the Court is Defendant SES’ Motion to Strike the
Lightsey Declaration (doc. 94-1), which TB-Elec cites as evidentiary support in its
Motion for Summary Judgment. (Doc. 93). SES argues that the Lightsey Declaration
should be stricken because it is a “sham affidavit.” (Doc. 120-1 pp. 3–6). Federal
Rule of Civil Procedure 56(c)(4) provides that “[a]n[y] affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). A sham affidavit
is one submitted in “flat contradiction” to “prior, sworn testimony.” Duke v.
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Nationstar Mort., LLC., 893 F. Supp. 2d 1238, 1244 (N.D. Ala. 2012) (quoting
Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)).
“[A] court may disregard an affidavit if it flatly contradicts, without any
explanation, clear testimony that the party provided at an earlier deposition.” Cooper
v. Georgia Dep't of Transportation, 837 F. App'x 657, 665 (11th Cir. 2020) (citing
Van T. Judkins & Assoc., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th. Cir.
1984)). But “[t]his rule applies only to inherent, unexplained inconsistencies that
create ‘transparent shams,’ not to discrepancies that merely create an issue of
credibility or that go to the weight of the evidence.” Cooper, 837 Fed. App’x. at 665.
Because this Court finds that the Lightsey Declaration is based on sufficient
personal knowledge of the facts and contains no “inherent, unexplained
inconsistencies,” SES’ Motion to Strike the Lightsey Declaration is due to be denied.
Britton Lightsey became the Chief Executive Officer of TB-Elec and TB-Comm on
June 27, 2022 (see doc. 120-2 ¶ 2), shortly before SES sent the final invoices from
the safety audit. (See doc. 95-13.) Lightsey testified in his deposition that he was not
involved in the safety audit until “after the fact,” but the Lightsey Declaration does
not contradict that testimony. (Doc. 120-3 at 11.) As Lightsey explains in his
declaration, he is “one of the custodians of the books and records that are [attached
to his declaration] . . . [and he is] familiar with the contents of those books and
records.” (Doc. 120-2 ¶3.) Lightsey thus does not claim that he has personal
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knowledge of the facts contained in the declaration based on his presence when the
facts occurred, but based on his subsequent review of pertinent business records as
TB-Elec’s and TB-Comm’s CEO. (Doc. 120-2 at 1-3.) Courts in this Circuit have
consistently held that the “personal knowledge [required for a summary judgment
affidavit or declaration] can be based on a review of relevant business files and
records.” See, e.g., Phillips v. Mortg. Elec. Registration Sys., Inc., 2013 WL
1498956, at *4 (N.D. Ala. Apr. 5, 2013); Duke, 893 F. Supp. 2d at 1244.
The Lightsey Declaration also does not contradict Lightsey’s representations
at his deposition that he did not have any communications with SES and that he was
not aware of any testimony he would be offering in the case. In the Declaration,
Lightsey states that various communications occurred between SES and TB-Elec
during the performance of the safety audit, but he does not state that he was involved
in any of those communications. (Doc. 120-3 at 12.) The Lightsey Declaration avers
that the statements therein are “based upon [his] own personal knowledge,” not his
presence when the described events occurred. As personal knowledge can come
from a custodian’s review of business records, there is no patent contradiction in the
Lightsey Declaration regarding communications with SES.
Finally, the fact that Lightsey stated in an April 2023 deposition that “to [his]
knowledge,” he was not aware that he would be providing any testimony in this case
does not render an affidavit signed seven months later a “sham affidavit.” (Doc. 120Page 11 of 55

3 at 12.) If such a statement amounts to an inconsistency, it is certainly not an
“unexplainable” one. When Lightsey was deposed in April 2023, less than a year
after becoming the CEO of TB-Elec and TB-Comm, Lightsey may not have had the
opportunity to review enough relevant business records to have acquired any
personal knowledge relevant to this litigation. Even if he had, TB-Elec’s attorneys
may not have yet determined what testimony would be necessary in this case. Thus,
there are no “inherent, unexplained inconsistencies” between Lightsey’s deposition
testimony and the statements in the Lightsey Declaration that would render the
Declaration a “sham affidavit.” Because the Court finds nothing inappropriate or
impermissible about the Lightsey Declaration, SES’ second Motion to Strike is due
to be DENIED.
III.

SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment is proper when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The Court “must view all evidence most favorably
toward the nonmoving party, and all justifiable inferences are to be drawn in the
nonmoving party’s favor.” Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir.
1990). The Court does not weigh the evidence as fact-finder; rather, it must
“determin[e] whether there is the need for a trial—whether, in other words, there are
any genuine factual issues that properly can be resolved only by a finder of fact
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because they may reasonably be resolved in favor of either party.” Anderson v.
Liberty Lobby, 477 U.S. 242, 250 (1986).4
When parties have filed cross-motions for summary judgment, “courts should
be very careful in their analysis to ensure that the proper party receives the benefit
of the summary judgment standard.” FCOA LLC v. Foremost Title & Escrow Servs.
LLC, 57 F.4th 939, 959 (11th Cir. 2023). “Before granting summary judgment for a
party, the court must consider the evidence in the light most favorable to the nonmovant and . . . draw all inferences in the non-movant's favor.” Id. at 959. “Only
once this is done may a court determine if a party is entitled to judgment as a matter
of law; should any material questions of fact remain that may cause a reasonable
factfinder to rule in the non-movant's favor, summary judgment must be denied.” Id.
IV.

SUMMARY JUDGMENT ANALYSIS
To begin, this Court applies the choice of law rules of the forum state, Alabama,

to determine what law should apply to TB-Elec's substantive claims. Grupo Televisa,
S.A. v. Telemundo Communications Grp., Inc., 485 F.3d 1233, 1240 (11th Cir. 2007)
(“A federal court sitting in diversity will apply the conflict-of-laws rules of the forum
state.”). “To determine which law applies in contract disputes, Alabama courts ‘first
look to the contract to determine whether the parties have specified a particular

Plaintiff’s declaratory judgment claims are governed by this same standard of review. See, e.g., Bingham, Ltd. v.
United States, 724 F.2d 921, 924 (11th Cir. 1984) (“Disposition of a summary judgment motion in a declaratory
judgment action is governed by the same basic principles that generally rule the grant or denial of such a motion.”).
4

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sovereign's law to govern.’” Clanton v. Inter.Net Glob., L.L.C., 435 F.3d 1319, 1323
(11th Cir. 2006) (quoting Stovall v. Universal Const. Co., Inc., 893 So.2d 1090, 1102
(Ala.2004)). In the instant case, the 2022 PSA includes a choice of law clause, which
states that “This Engagement shall be governed by, construed, interpreted and
enforced in accordance with the laws of the State of Louisiana, without giving effect
to the principles of conflict of laws thereof.” (Doc. 53-5 ¶ 11.) Therefore, this Court
will apply Louisiana substantive law to the parties’ breach of contract claims.
The parties dispute whether Alabama or Louisiana law should govern TBElec’s tort claims. SES argues that the PSA’s choice of law clause encompasses tort
claims, while TB-Elec argues that it applies only to contract claims. SES fixates on
the final phrase of the clause—"without giving effect to the principles of conflict of
laws thereof”—arguing that “[b]y including this phrase, the parties agreed that all
claims, including tort claims, would be governed by Louisiana substantive law.”
(Doc. 108 at 28.) However, the phrase “This Engagement” is what is relevant in
determining the clause’s scope.5

SES misreads Paragraph 11, discussing the phrase “without giving effect to the principles of conflict of laws
thereof” as if it refers to the conflicts of law principles of the forum state—Alabama. However, reading Paragraph
11 as a whole, “the principles of conflict of laws thereof” refers back to the phrase “the laws of the State of
Louisiana.” Clearly, the question of whether the PSA’s choice of law clause applies to the parties’ tort claims has
nothing to do with whether or not effect is given to the principles of conflict of laws of the State of Louisiana. Even
if the clause did state that Louisiana law would apply without giving effect to the principles of conflict of laws of
Alabama, the result would be the same. The only support SES cites for its position that the phrase “without giving
effect to the principles of conflict of laws thereof” expands the scope of the choice of law provision to include noncontractual claims is an article from the Washington Law Review and a decision from the Western District of
Virginia, neither of which bind this Court.
5

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Various courts have held that choice of law clauses similar to the one in the
2022 PSA were too narrow to encompass tort claims. For example, the Eleventh
Circuit considered the scope of a choice of law clause providing “This Release shall
be governed and construed in accordance with the laws of the State of Delaware
without giving effect to the choice of law provisions thereof.” Green Leaf Nursery
v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1298 (11th Cir. 2003). The court
found that the clause applied to “only the release itself” because it merely stated that
“This Release” would be governed by Delaware law. Id. at 1300. Because the clause
did “not refer to related tort claims or to any and all claims or disputes arising out
of settlement or arising out of the relationship of the parties,” it did not apply to the
plaintiff’s tort claims. Id.; see also Sunbelt Veterinary Supply, Inc. v. International
Bus. Sys. U.S., Inc., 985 F.Supp. 1352, 1354-56 (M.D.Ala.1997) (finding that the
language “This Agreement shall be governed by and construed under the laws of the
State of California, without reference to principles of conflict of laws” was too
narrow to warrant application of California law to the parties’ tort claims). Notably,
the Eleventh Circuit did not find the phrase “without giving effect to the choice of
law provisions thereof” instructive—it did not even mention the phrase in its
analysis. See Green Leaf Nursery, 341 F.3d at 1300-01. When the Eleventh Circuit
has found that choice of law language was broad enough to encompass tort claims,
it was because it included a “clause dictat[ing] that some things beyond the
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[contract’s] terms” were also governed by the chosen state law. See Alabama
Aircraft Indus., Inc. v. Boeing Co., 2022 WL 433457, at *9 (11th Cir. 2022) (finding
that the language “The interpretation of this Agreement and the rights and liabilities
of the parties to this Agreement shall be governed by the law of the state of Missouri,
excluding its conflicts of laws principles” was broad enough to apply to tort claims)
(emphasis added); Cooper v. Meridian Yachts Ltd., 575 F.3d 1151, 1162 (11th Cir.
2009) (finding that tort claims were covered by a choice of law clause providing that
“This Agreement, and all disputes arising out of or in connection with it, shall be
construed in accordance with and shall be governed by the Dutch law.”) (emphasis
added). Like the choice of law clause in Green Leaf Nursery, the clause in the 2022
PSA states only that “This Engagement shall be governed by, construed, interpreted
and enforced in accordance with” Louisiana law, not that “This Engagement and any
other claims arising out of it” shall be governed by Louisiana law.
The PSA’s choice of law clause does differ slightly from the clauses discussed
in the above-cited opinions in that it refers to an “Engagement” rather than an
“Agreement” or “Release.” Paragraph 1 of the PSA reads:
Paragraph 1 of the 2022 PSA provides:
Engagement. Client hereby retains Professional to provide those
services (the “Engagement”) described in the Client Proposal attached
to this Agreement as Exhibit A (the “Proposal”). Professional accepts
the retention and hereby agrees to perform the services described in the
Proposal (the “Services”) in accordance with applicable local, state and
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federal laws and in accordance with any policies, standards and
procedures of Client that are provided in writing to Professional. Client
has executed this Agreement through its duly authorized agent, and
Client and agent both acknowledge the agent’s authority.
(Doc. 53-5 ¶ 1.)
Based on this paragraph, the term “Engagement” seems to refer to “services” or the
“Client[’s] . . . ret[ention] [of the] Professional to provide . . . services.” Substituting
the first possible meaning of “engagement” results in a clause stating, “These
services shall be governed by, construed, interpreted and enforced. . . .” This
sentence simply does not make sense, because while an agreement regarding
services can be construed, interpreted, enforced, and governed, services themselves
are not construed, interpreted, enforced, or governed. If we instead utilize the second
possible meaning, “the Client’s retention of the Professional to provide services,”
the clause states that “the Client’s retention of the Professional to provide services
shall be governed by, construed, interpreted and enforced in accordance with the
laws of the State of Louisiana, without giving effect to the principles of conflict of
laws thereof.” In the context of the words “construe,” “interpret,” and “enforce,” the
phrase “retention of the Professional to provide services” reads like “agreement with
the Professional to provide services.” This reading is supported both by the parties’
own reading of the PSA and the definition of “engagement” in the legal context.

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In its Reply in Support of its Motion for Summary Judgment, TB-Elec asserts
that “This Engagement” refers to “the contract between TB-Elec and SES.” (Doc.
122 at 3.) None of SES’ filings explicitly state its definition of the term
“engagement,” but its arguments regarding the choice of law clause’s scope indicate
that it also understood “engagement” to refer to the contract or agreement between
itself and TB-Elec. For instance, SES states in both its Motion for Summary
Judgment and its Response to TB-Elec’s Motion for Summary Judgment that
“‘Alabama law has long recognized the right of parties to an agreement to choose a
particular state’s laws to govern an agreement’ unless contrary to Alabama public
policy.” (Doc. 91-1 23; doc 108 at 28 (quoting Thakkar v. ProctorU, Inc., 642 F.
Supp. 3d 1304, 1315-16 (N.D. Ala. 2022) (emphasis added)).6 Furthermore, Black’s
Law Dictionary defines “engagement” as a “contract or agreement involving mutual
promises . . . .” Engagement, BLACK'S LAW DICTIONARY (12th ed. 2024). Thus, the
use of the word “engagement” instead of the word “agreement” or “contract” does
not distinguish the PSA’s choice of law clause from the choice of law clauses
considered in the above-cited cases. “[T]herefore, the court must follow Alabama’s
choice-of-law rules” to determine what state’s substantive law governs those claims.
Sunbelt, 985 F. Supp. at 1354.

SES’ argument that the choice of law clause also governs tort claims arising out of the agreement is solely based
on the clause’s inclusion of the words “without giving effect to the principles of conflict of laws thereof.” However,
as previously discussed, this argument fails for multiple reasons. See supra n. 5.
6

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“Alabama applies the traditional doctrine[] of . . . lex loci delicti to tort
claims.” Colonial Life & Acc. Ins. Co. v. Hartford Fire Ins. Co., 358 F.3d 1306, 1308
(11th Cir. 2004). Under this doctrine, the court must “determine the substantive
rights of an injured party according to the law of the state where the injury occurred.”
Id. at 1308 (quoting Fitts v. Minnesota Mining & Mfg. Co., 581 So.2d 819, 820
(Ala.1991)). “[I]t is not the site of the alleged tortious act that is relevant, but the site
of the injury, or the site of the event that created the right to sue.” Glass v. S. Wrecker
Sales, 990 F. Supp. 1344, 1347 (M.D. Ala. 1998); see also Ex parte U.S. Bank Nat'l
Ass'n, 148 So. 3d 1060, 1069 (Ala. 2014). Where a plaintiff's damages are primarily
financial in nature, “the ‘injury’ for choice of law purposes occurs in the jurisdiction
where those economic damages are felt.” Doug's Coin & Jewelry, Inc. v. Am.'s Value
Channel, Inc., 2015 WL 3632228, at *8 (N.D. Ala. June 10, 2015) (citing Fitts, 581
So. 2d at 820).
TB-Elec’s claims for negligence and willful misconduct are based on its
allegations that Deville misrepresented the cost of the safety audit to TB-Elec and
that SES failed to “meet with, notify, and involve TB-Elec’s attachers in the safety
audit.” TB-Elec’s alleged damages are “SES[’] claim[] that TB-Elec owes over $1.2
million for the safety audit.” (Doc. 53 ¶ 79.) In this instance, the site of “the event
creating the right to sue” is Alabama. See Ex parte U.S. Bank Nat. Ass'n, 148 So. 3d
at 1071. The Alabama Supreme Court has held that when a plaintiff sues their insurer
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for bad-faith failure to defend the plaintiff in a previous lawsuit, the event creating
the right to sue is the insurer’s failure to defend. See Lifestar Response of Alabama,
Inc. v. Admiral Insurance Co., 17 So.3d 200, 213 (Ala.2009). In Lifestar, the court
held that the site of the injury was the state where the judgment against the plaintiff
in the antecedent lawsuit was entered, not the state where the plaintiff felt the
economic harm of the judgment against it. See Ex parte U.S. Bank Nat. Ass'n, 148
So. 3d at 1072 (discussing Lifestar, 17 So.3d 200). Negligence and willful
misconduct claims are similar to a bad faith failure to defend claim in that they
involve allegations that the defendant failed to do something it had a duty to do, and
the plaintiff was damaged as a result. Here, the invoice stating TB-Elec owes SES
$1.2 million is akin to the judgment stating Lifestar owed the plaintiff in the
antecedent lawsuit $5 million. Just as Lifestar claimed that the judgment was entered
against it due to its insurer’s failure to defend against the antecedent lawsuit, TBElec alleges that the invoice was sent due to SES’ failure to notify the attachers and
accurately present the cost of the audit to TB-Elec. It is undisputed that SES emailed
the final invoice to TB-Elec’s Chief Financial Officer, Matilda Harrison. (See doc.
95-13.) Therefore, receipt of the invoice—the event creating the right to sue—

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occurred in Alabama, where TB-Elec’s principal place of business is located.7 Thus,
Alabama law governs TB-Elec’s negligence and willful misconduct claims.
TB-Elec’s claims for fraud and fraudulent misrepresentation and deceit are
both based on its allegations that Eric Deville made misrepresentations that induced
TB-Elec to enter into a contract with SES.8 TB-Elec’s alleged damages are, again,
the $1.2 million SES invoiced to TB-Elec for the safety audit and the lost profit
damages SES claims TB-Elec owes for causing SES to close their joint use division.
As previously discussed, TB-Elec has not yet paid the $1.2 million invoice, nor has
it paid SES any lost profit damages, so TB-Elec has not yet suffered financial injury.
Therefore, the site of the injuries is the state where TB-Elec received SES’ invoice
and where SES’ claim for lost profits was filed—Alabama. Thus, Alabama law
governs TB-Elec’s fraud claims as well.
A. TB-Elec’s Contract Claims

7

TB-Elec has not yet paid the $1.2 million invoice SES sent, so TB-Elec has not yet suffered economic harm in the
form of payments to SES. However, even if the Court considered the site of the injury for choice of law purposes to
be the site of economic harm, TB-Elec’s principal place of business in in Hamilton, Alabama, so any eventual
economic harm would be suffered in Alabama. Therefore, Alabama substantive law would still apply.
8
TB-Elec’s claim for fraud in its Amended Complaint also alleges that before TB-Elec signed the April 2022 PSA,
“SES represented to TB-Elec that the majority of the work had already been performed by SES,” which TB-Elec
alleges it later learned was untrue. (Doc. 53 ¶ 56.) The Complaint also alleges that “SES changed material terms of
the contract from the First Contract to the Second Contract, but never communicated to [TB-Elec] that it had
changed material terms.” (Id. ¶ 57.) These allegations are listed in the Narrative Statement of Undisputed Material
Facts in TB-Elec’s Motion for Summary Judgment, but TB-Elec does not refer to them in its argument that it is
entitled to summary judgment on its fraud claims.

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Count I of TB-Elec’s Amended Complaint raises several breach of contract
claims against SES. (Doc. 53 ¶ 39-51.) Specifically, TB-Elec alleges that SES
breached the 2022 PSA by auditing TB-Comm’s attachments to TB-Elec’s poles and
billing for that audit (id. ¶ 45), failing to hold an attacher meeting and notify the
attachers that it was performing audits (id. ¶ 40), and “failing to timely and properly
invoice attachers [and TB-Elec itself] for the audit services.” (Id. ¶ 41, 48.) TB-Elec
also seeks to have this Court declare that (1) the term “attacher” as used in the PSA
does not encompass TB-Elec or its subsidiary, TB-Comm, (2) SES’ audit of TBComm was outside the scope of the 2022 PSA, and (3) SES’ failure to satisfy its
obligations under the 2022 PSA preclude it from seeking payment from TB-Elec or
the attachers. (Doc. 53 ¶¶ 60(a), (b), & (c).) TB-Elec moves for summary judgment
on all its contract claims and its related declaratory judgment claims. (Doc. 93.) SES
moves for summary judgment against all TB-Elec’s contract claims. (Doc. 91-1.)
1. The Meaning of “Attacher”
First, two of TB-Elec’s contract claims require a determination of the meaning
of the term “Attacher” as used in the 2022 PSA:
(1) TB-Elec’s claim for a declaratory judgment on (i) whether the term
“Attacher” as used in the PSA encompasses TB-Elec and TB-Comm and (ii)

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whether the scope of services agreed to in the PSA therefore included audits of
TB-Elec’s or TB-Comm’s attachments. (Doc. 53 ¶ 60(a) & (b).)
(2) TB-Elec’s claim that SES breached its contract with TB-Elec by auditing TBElec’s and TB-Comm’s attachments and billing TB-Elec for those audits. (Doc.
53 ¶ 45.)
TB-Elec asserts that it is entitled to summary judgment on all three claims
because TB-Elec and TB-Comm are not “Attachers” under the contract, and
therefore SES acted outside the scope of the PSA in auditing TB-Elec and TB-Comm
and billing TB-Elec for said audits. (Doc. 93 at 46.) For its part, SES argues that it
is entitled to summary judgment on all three claims because TB-Comm is an
“Attacher” under the April 2022 PSA, and thus the audit of TB-Comm was within
the scope of the contract.9 (Doc. 91-1 at 38, 31.)
The April 2022 PSA does not define the term “Attacher.” TB-Elec and SES
agree that within the context of the April 2022 PSA, “Attacher” refers to “‘third
party’ attachers.” (Doc. 91-1 at 29.) However, the parties do not agree on the
meaning of “third party” in the context of the PSA—specifically, whether TB-Comm
is a third party attacher. SES argues that TB-Comm is a third party attacher because,
“[a]s a matter of fact and law, [TB-Comm] is a third-party entity as to [TB-Elec].”

9

SES refers to TB-Comm as “Freedom Fiber” in its filings.

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(Doc. 91-1 at 30.) TB-Elec argues that TB-Comm is not an “Attacher” under the
April 2022 PSA because (1) TB-Comm was not included in the list of attachers TBElec sent to SES during the performance of the contract (doc. 93 at 32-33), and (2)
TB-Comm is not a third party attacher because it is TB-Elec’s wholly-owned
subsidiary, and thus cannot be considered a “third party” as to TB-Elec. (Doc. 93 at
37-38.)
In order to grant summary judgment for either party on their claims regarding
SES’ audit of TB-Comm, this Court would first need to determine whether TBComm is a third party attacher, and thus an “Attacher” under the April 2022 PSA.
This is not a determination the Court can make at the summary judgment stage.
Under Louisiana law, “the interpretation of an unambiguous contract is an
issue of law for the court” which may be decided on summary judgment. Cenac v.
Orkin, L.L.C., 941 F.3d 182, 190 (5th Cir. 2019) (quoting Amoco Prod. Co. v. Tex.
Meridian Res. Expl. Inc., 180 F.3d 664, 668 (5th Cir. 1999) (emphasis added). “The
determination of whether a contract is clear or unambiguous is a question of law,”
Sims v. Mulhearn Funeral Home, Inc., 956 So.2d 583, 590 (La. 2007), but if a court
determines as a matter of law that a contract is ambiguous, a question of fact arises,
see Carter v. BRMAP, 591 So. 2d 1184, 1188 (La. Ct. App. 1991).10

10

TB-Elec erroneously argues that, after finding the contract ambiguous as a matter of law, this Court should
resolve the ambiguity in favor of TB-Elec, because “in case of doubt that cannot be otherwise resolved, a clause in a

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“A contract is ambiguous . . . ‘when it is uncertain as to the parties' intentions and
susceptible to more than one reasonable meaning under the circumstances and after
applying established rules of construction.’” Guidry v. Am. Pub. Life Ins. Co., 512
F.3d 177, 181 (5th Cir. 2007). In Louisiana, the established rules of construction
require a court to first “look to the plain text of the contract to determine whether its
meaning is clear and unambiguous.” Cenac, 941 F.3d at 190. “The words of a
contract ‘are to be construed using their plain, ordinary and generally prevailing
meaning, unless the words have acquired a technical meaning.’” Guidry, 512 F.3d
at 181 (quoting Cadwallader v. Allstate Ins. Co., 848 So.2d 577, 580 (La.2003)). “If
the text is clear and unambiguous, the court may not go beyond the text for further
interpretation.” Cenac, 941 F.3d at 190.
Here, the 2022 PSA is ambiguous as to the meaning of “Attacher,” because
even after applying Louisiana’s established rules of construction, the “PSA is
uncertain as to the parties’ intentions and susceptible to more than one reasonable
meaning.” Guidry, 512 F.3d at 181. The plain text of the PSA does not define the
term “Attacher.” Thus, the Court must determine if the word has acquired a technical

contract must be interpreted against the party who furnished its text.” (Doc. 93 at 40) (citing La. Civ. Code art. 2056;
Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co., 630 So. 2d 759, 764 (La. 1994)). TB-Elec argues that “[t]o
the extent the evidence concerning the intent of the parties and the industry usage of this term does not resolve this
ambiguity, the ambiguity must be resolved against SES as the drafter of the agreement.” (Doc. 93 at 40-41.) The
case TB-Elec cites in support of this argument concerns an insurance contract, and the cited principle regarding
resolution of ambiguity against the drafter is specific to insurance contracts. Furthermore, this court cannot resolve
the ambiguity in this case at all at the summary judgment stage, because, as discussed infra, the evidence
demonstrates a dispute of material fact pertaining to the party’s intent.

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meaning. The parties seem to agree that in the context of a safety audit, the word
“attacher” has acquired the technical meaning of a “third-party attacher.” (Doc. 93
at 35; Doc. 91-1 ¶ 35.) Regardless, there remains a genuine issue of material fact
regarding the application of the technical meaning of the term “attacher.”
SES’ expert Nelson Bingel and TB-Elec’s expert Daran Anderson agree that
“the word ‘attacher’ is commonly and generally used to describe third party entities
with attachments to a pole owner’s pole.” (Doc. 72-13 at 4; Doc. 66-16 at 21.)
However, the experts disagree on whether TB-Comm is encompassed by that
technical definition. Bingel opines that because TB-Comm “is a third-party entity,
not the pole owner, owns the lease rights to the fiber, and pays rent to [TB-Elec] via
lease agreement to attach communication wires and equipment to [TB-Elec] poles,”
TB-Comm is “an attacher.” (Doc. 66-16 at 21.) Anderson, however, opines that “the
owner of the pole would not be considered an ‘attacher’ to its own poles,” and “it
would be improper for [TB-Comm] to be considered an attacher in this situation.”
(Doc. 66-16 at 4.) Anderson explains that attachment audits and safety audits are
different, and while “‘attachment audits’ are audits of each and every attachment to
the poles regardless of who owns the attachments[,] [s]afety audits are commonly
thought to be audits of a particular third-party attacher or attachers’ lines to poles . .
. .” (Doc. 66-16 at 4.)

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The parties offer extensive additional extrinsic evidence to support their
respective definitions of “Attacher.” The parties dispute whether the fact that TBComm was listed as an attacher in the Volt Attachment Audit data entitled SES to
consider TB-Comm an attacher for the purposes of the safety audit.11 Additionally,
TB-Elec and SES disagree on the significance of the fact that TB-Elec did not
include TB-Comm in the list of attacher contact information it sent to SES after the
March 10, 2022 meeting.12 Finally, the parties provide competing evidence of TBComm’s relationship to TB-Elec for the purposes of the safety audit.13
SES argues that Bingel’s expert opinion combined with the other extrinsic
evidence offered by SES proves that “Attacher” as used in the 2022 PSA

11

SES notes that TB-Comm was identified as an attacher in the Volt Attachment Audit data that TB-Elec sent to
SES. (Doc. 91-1 at 27.) SES argues that this supports its reading of “attacher” as used in the PSA to include TBComm. TB-Elec responds that it did not intend the Volt data to serve as a list of attachers to be audited by SES, and
that TB-Elec “never authorized SES to use the Volt audit results as a basis for the SES safety audit.” (Doc. 106 ¶ 1011.) TB-Elec employee Mark Carden stated that his understanding was that the Volt data “would be where [SES] got
the . . . lat[itude] and longitudes of each pole.” (Doc. 73-5 at 47:10-18.) TB-Elec also argues that the Volt Contract
involved an attachment audit, not a safety audit. TB-Elec notes that “the purpose of the safety audit performed by
SES was identify [sic] third-party attachers’ safety violations on TB-Elec’s poles.” (Doc. 93 at 36). TB-Elec claims
that it “had no intention of auditing itself and did not contract for SES to audit TB-Elec power lines or the fiber
cables leased to TB-Comm, as its lines and cables can be anywhere on its own poles per the NESC standards.” (Id. ¶
72).
12
TB-Elec argues that this list indicates that TB-Comm was not an attacher. (See, e.g., doc. 106 at 8.) SES argues
that the fact that TB-Comm was not included on the list would not indicate to SES that TB-Comm was not an
attacher. SES would not have expected TB-Comm’s contact information to be listed because TB-Comm and TBElec have the same contact information, so SES did not need TB-Elec to provide it. SES also argues that at the
March 10, 2022 meeting, before SES asked for a list of contact information, the parties “discussed the scope of work
for [TB-Comm] attachments” to be performed as part of the safety audit. (Doc. 91-1 at 23 (citing doc. 95-2 at 5254).)
13
SES argues that TB-Comm is a “third-party entity as to TB-Elec” because “[i]t maintains its own corporate
identity in all respects and owns the right (by lease) to attach fiber to TB-Elec’s poles.” (Doc. 91-1 at 30.) TB-Elec
asserts that TB-Comm is not a third party, because “it is a wholly owned subsidiary of TB-Elec,” “share[s] office
space and executives” with TB-Elec, and “does not have a joint use agreement or pole attachment agreement with
TB-Elec like TB-Elec’s other attachers,” but rather “has a lease agreement to lease the use of TB-Elec’s fiber on
TB-Elec’s poles.” (Doc. 93 at 35-37.)

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encompasses TB-Comm as a matter of law. In doing so, SES asks the Court to make
a choice between two reasonable findings of fact. A genuine issue of material fact
exists—and summary judgment is thus improper—"if the record taken as a whole
could lead a rational trier of fact to find for the nonmoving party.” Felts v. Wells
Fargo Bank, N.A., 893 F.3d 1305, 1311 (11th Cir. 2018). A rational jury viewing the
expert opinions and other evidence submitted by both parties could find that the term
“Attacher” as used in the 2022 PSA either does or does not encompass TB-Comm.
Accordingly, summary judgment on TB-Elec’s breach of contract and declaratory
judgment claims regarding the meaning of “Attacher” are due to be denied.
2. Notice to the Attachers
Next, TB-Elec claims that “SES’ failure to hold a meeting with attachers at
the beginning of the project, to notify attachers of the audit services, to give attachers
an opportunity to participate in the audit services, and to uphold its obligations in
the April 2022 PSA” constitute breaches of the PSA. (Doc. 93 at 41.) TB-Elec also
seeks a declaratory judgment that these breaches “preclude SES from seeking
payment from TB-Elec in this case.” (Doc. 53 ¶ 60(c).)
SES’ motion for summary judgment on this portion of TB-Elec’s contract
claim is due to be denied. When a party moves for summary judgment on an issue
“on which the non-movant would bear the burden of proof at trial,” the movant may
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support its motion for summary judgment in one of two ways. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993). It may either (1) “show [ ]—that is,
point[ ] out to the district court—that there is an absence of evidence to support the
non-moving party's case” or (2) provide “affirmative evidence demonstrating that
the non-moving party will be unable to prove its case at trial.” Fitzpatrick, 2 F.3d at
1116 (quoting U.S. v. Four Parcels of Real Prop., 941 F.2d 1428, 1438 (11th
Cir.1991) (en banc)). In the present case, SES has chosen the second route and has
purported to offer affirmative evidence that it did satisfy its obligation to hold an
“Attacher Meeting.”
To support its assertion that it held an “Attacher Meeting” as required by the
2022 PSA, SES offers the testimony of its former employee Eric Deville, in which
he “testified that he held a meeting for attachers at the start of the attachment audit
(preceding the Safety Audit), where only Charter chose to attend.” (Doc. 91-1 at 26.)
The attachment audit Mr. Deville refers to was performed by Volt, not by SES. (Doc
91-2 at 104-05.) Mr. Deville worked for Volt during the course of the attachment
audit, but worked for SES when SES began performing the safety audit for TB-Elec.
(Doc. 91-1 ¶ 3-5). However, the attachment audit and safety audit were two separate
audits performed by two different companies pursuant to two separate contracts. Mr.
Deville’s statement is evidence only that Volt held an attacher meeting before
performing the attachment audit. It is not evidence that SES held an attacher meeting
Page 29 of 55

at any time before, during, or after the safety audit. Nothing in the record indicates
that SES’ obligation to hold an attacher meeting was satisfied by the occurrence of
an attacher meeting held by a different company performing a different audit before
TB-Elec and SES began working together.
SES also asserts that it notified the attachers of the safety audit through
methods other than an attacher meeting. For instance, SES refers to deposition
testimony in which Mr. Deville states that Charter Communications knew about the
safety audit from a conversation Mr. Deville had with a Charter representative while
visiting a pole Charter was leasing from TB-Elec. (Doc. 91-2 at 193-94.) However,
Deville also testified that this conversation occurred between the attachment audit
and the safety audit and that he was likely employed by Volt at the time. (Id. at 19495.) SES has not alleged any facts nor cited any law to suggest that this off-hand
conversation with one of TB-Elec’s attachers before Mr. Deville was employed by
SES could discharge its obligation to hold an attacher meeting.
SES also cites Mr. Deville’s testimony that he sent letters informing each
attacher that SES would be performing a safety audit and that the attachers could
contact SES for more information. (Doc. 91-1 at 188-91.) However, TB-Elec points
out that Mr. Deville testified that he did not “think a copy [of the mailed notice]
exists,” because he never saved any copies. (Doc. 94-7 at 446-47.) A reasonable jury
viewing the record as a whole could find—based on the fact that there is no tangible
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copy or record of the letters Deville claims he sent—that Deville’s deposition
testimony is untrue and in fact, no letters were sent. Thus, even if SES had alleged—
which it has not—that mailed notices would have fulfilled its obligation to hold an
attacher meeting, TB-Elec has presented sufficient evidence to put a material fact—
whether SES mailed notices out to the attachers—in genuine dispute.
As explained above, SES has failed to present sufficient affirmative evidence
to demonstrate that TB-Elec will not be able to prove its breach of contract claim
regarding SES’ failure to hold an attacher meeting. Accordingly, SES’ motion for
summary judgment on that portion of TB-Elec’s contract claim is due to be denied.
TB-Elec’s motion for summary judgment on its breach of contract and
declaratory judgment claims regarding notice to the attachers is also due to be
denied. To secure summary judgment, TB-Elec “must show that, on all the essential
elements of its case on which it bears the burden of proof at trial, no reasonable jury
could find for the nonmoving party.” U.S. v. Four Parcels of Real Prop., 941 F.2d
at 1438 (citing Chanel, Inc. v. Italian Activewear, Inc., 931 F.2d 1472, 1477 (11th
Cir.1991)). In Louisiana, “[t]he essential elements of a breach of contract claim are:
(1) the obligor's undertaking an obligation to perform; (2) the obligor failed to
perform the obligation (the breach); and (3) the failure to perform resulted in
damages to the obligee.” Moore v. Vauthier, 389 So.3d 872, 878 (La. Ct. App. 2024)

Page 31 of 55

(citing La. Civ. Code Ann. art. 1994; Denham Homes, L.L.C. v. Teche Fed. Bank,
182 So.3d 108, 119 (La. Ct. App. 2015)).
The 2022 PSA establishes that SES had an obligation to hold an “Attacher
Meeting,” satisfying the first element. (Doc. 53-5 at 6.) Under Louisiana contract
law, “failure to perform results from nonperformance, defective performance, or
delay in performance.” La. Civ. Code Ann. art. 1994. TB-Elec alleges that the second
element of its contract claim is satisfied because SES did not hold an attacher
meeting or otherwise provide notice to the attachers that SES would be performing
a safety audit. (Doc. 93 at 36.) In support of this allegation, TB-Elec cites an affidavit
signed by Brighton Lightsey, stating that “SES did not hold a kickoff meeting for
attachers.” (Doc. 72-1 ¶ 32.) As discussed supra, the only evidence SES has
submitted to refute this allegation is irrelevant. (Doc. 91-1 at 26.) Thus, TB-Elec has
sufficiently established that SES failed to perform its obligation to hold an attacher
meeting.
TB-Elec also alleges that SES breached the April 2022 PSA by failing “to
notify attachers of the audit services it would be performing, as it had represented it
would.” (Doc. 93 at 46.) TB-Elec and SES have presented evidence to support and
refute this allegation, respectively. However, the 2022 PSA does not contain a
separate notification requirement in addition to the requirement to hold an attacher
meeting. It is unclear whether TB-Elec believes that SES had a contractual
Page 32 of 55

obligation to notify the attachers of the safety audit through some other method. TBElec simply alleges that Mr. Deville sent an email to TB-Elec’s then-CEO Steve
Foshee in March 2021, stating “that SES would begin getting the necessary
notifications out to TB-Elec’s customers/attachers, letting them know about the
attachment audit and the process and procedures.” (Doc. 53 ¶ 43); see also (Doc. 93
at 38 ¶ 4). However, TB-Elec does not allege that this representation modified SES’
obligations under the 2022 PSA to add an obligation to provide notice to the
attachers instead of or in addition to holding an attacher meeting. Even if Mr.
Deville’s email had modified the 2022 PSA to require SES to notify the attachers
outside an attacher meeting, there is a genuine dispute of material fact precluding a
finding that SES did not send notices to the attachers. Thus, TB-Elec has failed to
sufficiently establish (1) that SES had a contractual obligation to notify the attachers
beyond its duty to hold an attacher meeting, and (2) that if SES did have such an
obligation, it failed to fulfill it.
Furthermore, even if there were no dispute of material fact on the issue of
alternative notification of the attachers, summary judgment would still be due to be
denied because TB-Elec has failed to establish that SES’ failure to meet with or
notify the attachers caused TB-Elec’s damages. See Fla. Gas Transmission Co., LLC
v. Texas Brine Co., LLC, 282 So.3d 256, 260 (La. Ct. App. 2019) (“Causation is an
essential element of both contract and tort claims. Whether a defendant's actions
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caused the plaintiff's damages is a question of fact . . .”) (citing Hayes Fund for First
United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 193
So. 3d 1110, 1115 (La. 2015)). TB-Elec claims that SES’ failure to hold an attacher
meeting or otherwise notify the attachers of the audit caused the attachers not to pay
their invoices, leaving TB-Elec arguably responsible for the entire bill. (Doc. 93 at
28, 45.) However, TB-Elec has not cited any evidence to support this allegation
beyond an affidavit stating that “it is believed that [the attachers’ refusal to pay] is
due, in large part, to the fact that the attachers did not receive any notice of the audit
or any opportunity to participate in it.” (Doc. 93 at 28 (citing Doc. 72-1 ¶ 54)).
Because “unsupported allegations or affidavits setting forth ‘ultimate or conclusory
facts and conclusions of law’ are insufficient to either support or defeat a motion for
summary judgment,” TB-Elec has failed to sufficiently establish the causation
element of its breach of contract claim. Galindo v. Precision Am. Corp., 754 F.2d
1212, 1216 (5th Cir. 1985) (quoting C. Wright, A. Miller & M. Kane, Federal
Practice and Procedure: Civil 2d § 2738 (1983)). Therefore, summary judgment in
either party’s favor on TB-Elec’s contract claims based on notification of the
attachers is due to be denied.
3. Invoicing the Attachers

Finally, TB-Elec claims that SES breached the 2022 PSA by “failing to timely
and properly invoice attachers.” (Doc. 53 ¶ 41, 48.) TB-Elec does not clearly
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articulate the basis for its allegation that the invoices were untimely. TB-Elec merely
states that it “began receiving audit results and invoices from SES in late April
2022,” and that SES’ employee Miranda Elliot “sent one collective email to all of
the entities that she deemed to be attachers for purposes of the safety audit –
including TB-Elec and TB-Comm” on “July 14, 2022, nearly eighteen months after
work began.” (Doc. 93 at 43.) TB-Elec also alleges that SES’ failure to invoice TBElec until after all work on the audit was complete was untimely, and “prevented
SES’ mistake from being discovered earlier.” (Id. at 48.) However, nothing in the
2022 PSA states that SES was required to invoice TB-Elec or its attachers within a
particular amount of time.
SES asserts that “[b]ecause the PSA does not specify a project completion
date, SES was obligated to perform ‘within a reasonable time.’” (Doc. 91-1 at 34)
(quoting La. C.C. art. 1778). SES argues that the timing of its invoices was
reasonable because “[t]he PSA contemplates invoicing at project completion.” (Doc.
91-1 at 36.) The 2022 PSA obligated SES to “[i]nvoic[e] [a]ttacher[s] based on
violation percentages.” (Doc. 53-5 at 6.) According to SES, “[t]his obviously means
each attacher will be billed for the percentage of its violations based on the total
number of violations for all attachers,” and “[t]hat is precisely what occurred.” (Doc.
91-1 at 36.) TB-Elec has not pointed to anything to refute this reading of the 2022
PSA.
Page 35 of 55

Additionally, the record evidence indicates that SES waited until the audit’s
completion to invoice TB-Elec because TB-Elec asked SES to do so. Initially, SES
sent TB-Elec an invoice after each “package” in the audit was complete. However,
after SES had sent several package-by-package invoices (docs. 99-12, 99-33, 9934), TB-Elec’s CFO sent an email asking SES to send “one invoice of the total that
TB-Elec owes for the safety audit” rather than sending invoices as each package was
completed. (Doc. 91-17.) As SES points out, SES could not bill TB-Elec for the total
it owed for the safety audit until the safety audit was complete. (Doc. 91-1 at 36.)
Again, TB-Elec has offered nothing to counter this.
If the 2022 PSA and TB-Elec’s own requests required invoicing at project
completion, the timing of the invoices sent to TB-Elec and its attachers is only
unreasonable if the time it took SES to complete the project was unreasonable. SES
asserts that eighteen months was a reasonable amount of time in which to “perform[]
the Safety Audit of TB-Elec’s 7,000+ electrical poles, with cures designed for the
approximately 7,883 violations.” (Doc. 91-1 at 35.) To support this assertion, SES
notes that the attachment audit contract between Volt and TB-Elec provided for
completion within one year. (Doc. 100-1 at 3 (filed under seal).) However, TB-Elec
has provided deposition testimony from Gary Guin—Mr. Deville’s successor at
SES—in which Mr. Guin states that he had heard the TB-Elec safety audit being
referred to as “filler work” at SES. (Doc. 94-9 at 59-61.) Mr. Guin testified that after
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hearing this, he told SES’ fieldwork supervisor, “I want you to send all of your guys
up here, and let’s get this work done and get done with [TB-Elec].” (Id. at 62.)
SES also claims that there was nothing “improper” about its invoicing,
because it “invoiced the attachers per the Payment Terms in the [2022] PSA.” (Doc.
91-1 at 37.) TB-Elec does not seem to dispute SES’ compliance with the Payment
Terms, but it argues that SES “trick[ed] TB-Elec into signing” the 2022 PSA and
“le[ft] TB-Elec holding the bag for the entirety of the audit expenses” after Mr. Guin
“realized that SES and Deville had made a mess of the safety audit.” (Doc. 93 at 45.)
On April 4, 2022, Mr. Guin sent TB-Elec an email stating “we are in the final stages
of the field work for the safety audit” and “still have quite a bit to finish up on the
design side.” (Doc. 94-10 at 10.) Mr. Guin attached a new PSA—the 2022 PSA—to
this email. (Id.) TB-Elec claims that “[s]ince SES’ safety audit work had purportedly
been going on for 14 months at this point, TB-Elec believed that the work was at an
advanced stage and that SES had taken all steps necessary to apprise attachers of the
audit and to bill and collect from them, to the extent applicable.” (Doc. 93 at 42-43.)
According to SES, it did not ask TB-Elec to sign the 2022 PSA to trick TB-Elec, but
to obtain a signed contract for the project and to clarify the scope of the safety audit.
(See doc. 117 at 3 (“[the] meeting between representatives of TB-Elec and
representatives of SES in March 2022 at TB-Elec’s office [was] for the express

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purpose of clarifying the scope of the project, in large part because of Deville’s
departure and the lack of a contract.”))
Based on the evidence submitted by both parties, there are genuine disputes
of material fact regarding the timeliness and propriety of SES’ invoicing procedure.
A reasonable jury viewing the record as a whole could find that eighteen months was
a reasonable time in which to complete a safety audit and that SES’ invoicing
procedure was not otherwise “improper.” However, a reasonable jury could instead
find that the timing of completion was unreasonable because SES’ employees had
treated the safety audit as “filler work” until Mr. Guin became involved.
Accordingly, summary judgment on this portion of TB-Elec’s contract claim is due
to be denied as to both parties.
4. SES’ Failure to Perform its Obligations in Good Faith
Mixed in with TB-Elec’s argument regarding the timeliness and propriety of
the invoices is an allegation that SES breached the “implied covenant of good faith
and fair dealing” by “not perform[ing] its obligations in good faith and in a manner
that would reasonably allow for SES to collect from TB-Elec’s attachers.” (Doc. 93
at 44.) However, this allegation cannot form the basis of TB-Elec’s breach of
contract claim for untimely and improper invoicing or any of its other breach of
contract claims.

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“Louisiana does not recognize a separate and distinct obligation of good faith,
the breach of which would be equivalent to a breach of the contract between the
parties.” Gulf Coast Bank & Tr. Co. v. Warren, 125 So. 3d 1211, 1219 (La. Ct. App.
2013). “The performance of an obligation or contract can be characterized as being
in good faith or bad faith, but the party alleging bad faith performance must first
allege facts revealing the duty to perform an obligation.” Id. at 1219. Therefore, not
only is TB-Elec unable to use a claim for breach of the covenant of good faith as a
stand-in for its breach of contract claim, it also cannot support a separate claim for
breach of the covenant of good faith without “first alleg[ing] facts revealing the duty
to perform an obligation.” Id. Because TB-Elec has not pointed to any provision in
the 2022 PSA establishing an obligation to send invoices in a particular amount of
time or in a particular manner, it has not met its initial burden of proof regarding its
claim for breach of contract. Accordingly, it has also failed to support its claim for
breach of the implied covenant of good faith as it relates to SES’ invoicing methods.
TB-Elec’s arguments that SES breached the implied covenant of good faith
are so entangled in its overarching breach of contract arguments that it is impossible
to determine which alleged obligation TB-Elec claims was carried out in bad faith.
(See Doc. 93 at 44-46.) In any case, TB-Elec has failed to make a sufficient showing
of bad faith with regard to any of SES’ other obligations as to warrant summary
judgment.
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The text of the 2022 PSA sufficiently establishes that SES owed an obligation
to conduct a safety audit of TB-Elec’s attachers and to hold an attacher meeting.
(Doc. 53-5 at 6.) However, establishing the existence of an obligation is only the
first step in proving a claim for breach of the implied covenant of good faith. A
plaintiff claiming breach of the covenant of good faith must also establish that the
obligation was breached. See Johnson v. Am. Sec. Ins. Co., 650 F. Supp. 3d 483, 488
(E.D. La. 2023) (“[I]f there is no valid claim for breach of contract, then, logically,
there can be no claim for bad faith breach of the contract.”). TB-Elec has not shown
that SES failed to fulfill its obligation to conduct a safety audit, and thus cannot show
a breach of the covenant of good faith regarding SES’ obligation to do so.
The record evidence supports TB-Elec’s assertion that SES failed to fulfill its
obligation to hold an attacher meeting, but under Louisiana law, “[a] mere failure to
fulfill an obligation, without a showing of intent or ill will, does not constitute a
breach of good faith.” Brill v. Catfish Shaks of Am., Inc., 727 F. Supp. 1035, 1041
(E.D. La. 1989). While TB-Elec has shown that SES failed to hold an attacher
meeting, TB-Elec has not provided any evidence that this failure was intentional or
accompanied by ill will.
In sum, TB-Elec has failed to satisfy the prerequisites of a claim for breach of
the covenant of good faith with regard to the auditing or billing of its attachers.
Additionally, TB-Elec has failed to provide any evidentiary support for a claim that
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SES acted in bad faith in failing to hold an attacher meeting. Thus, summary
judgment in favor of TB-Elec on its claim for breach of the implied covenant of good
faith and fair dealing is due to be denied.
Accordingly, summary judgment in favor of TB-Elec on Count I and Count III ¶
60(a)-(c) of TB-Elec’s Complaint is due to be DENIED. Summary judgment in
favor of SES on the same counts is also due to be DENIED.
B. SES’ Contract Claims
SES’ Counterclaim raises five bad faith breach of contract claims against TBElec. Specifically, SES alleges that TB-Elec breached the 2022 PSA when it failed
to pay SES for its audits of TB-Comm, CenturyLink, AT&T, Charter
Communications, and Bevill State (Doc. 55.) TB-Elec moves for summary judgment
against all counterclaims. (Doc. 93.) SES moves for partial summary judgment on
its counterclaims. Specifically, SES seeks a judgment that TB-Elec breached the
2022 PSA, but SES argues that whether or not the alleged breaches were done in bad
faith is a question for the jury.
First, summary judgment on Count I of SES’ Counterclaim—regarding TBElec’s failure to pay for the audit of TB-Comm—is improper because there is a
genuine issue of material fact regarding the meaning of “Attacher” in the 2022 PSA.
The meaning of “Attacher” is integral to this breach of contract counterclaim,
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because if TB-Comm is not an attacher, TB-Elec has no obligation to pay for SES’
audit of TB-Comm, and Count I fails as a matter of law. Alternatively, if TB-Comm
is an attacher, TB-Elec breached its obligation to SES by refusing to pay for the audit
of TB-Comm. The Court has determined that the meaning of “Attacher” as used in
the 2022 PSA is a question for the factfinder.
Accordingly, summary judgment in favor of TB-Elec on Count I of SES’
Counterclaim is due to be DENIED. Summary judgment in favor of SES on Count
I of SES’ Counterclaim is also due to be DENIED.
In defense against the remaining counts of SES’ counterclaim, TB-Elec argues
that SES’ alleged breaches of the 2022 PSA excuse TB-Elec from paying the
invoices its attachers refused to pay. Under Louisiana contract law, “not every
breach excuses the other party from the contract.” LAD Servs. of Louisiana, L.L.C.
v. Superior Derrick Servs., 167 So. 3d 746, 756 (La. Ct. App. 2014). “[W]here one
party substantially breaches a contract, the other party to it has a defense and an
excuse for nonperformance.” Commerce Ins. Agency, Inc. v. Hogue, 618 So.2d 1048,
1052 (La. Ct. App. 1993). “A breach is substantial if it is an actual cause of the other
party's ‘failure to comply with its obligations.’” Alonso v. Westcoast Corp., 920 F.3d
878, 884 (5th Cir. 2019) (quoting LAD Servs. of Louisiana, 167 So. 3d at 756).

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The Court cannot find that, as a matter of law, any of SES’ alleged breaches
of the 2022 PSA excused TB-Elec’s performance. As previously discussed, TB-Elec
has only successfully shown that SES’ failure to hold an attacher meeting satisfies
the first two elements of a breach of contract claim. TB-Elec has not sufficiently
established those elements with regard to any of SES’ other alleged breaches of the
2022 PSA. Moreover, TB-Elec has not sufficiently established that SES’ failure to
hold an attacher meeting was the cause of the attachers’ refusal to pay the invoices.
Therefore, TB-Elec has not met its burden of showing that SES’ failure to hold an
attacher meeting is a substantial breach that excuses TB-Elec’s nonperformance.
SES, however, has not established that its failure to hold the attacher meeting was
not the cause of the attachers’ refusal to pay. The evidence is such that a reasonable
jury could find for either party on the issue.
Thus, the question of whether SES committed a substantial breach that
relieved TB-Elec of its obligation to pay is one for the jury. Accordingly, partial
summary judgment in SES’ favor on Counts II, III, IV, and V of SES’ Counterclaim
is due to be DENIED.
TB-Elec seeks summary judgment on the entirety of SES’ contract
counterclaims, including SES’ claims that TB-Elec acted in bad faith and SES’ claim

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for lost profit damages.14 (Doc. 93.) TB-Elec argues it is entitled to summary
judgment in its favor because SES has failed to prove that TB-Elec acted in bad faith.
(Doc. 93 at 48-49.) However, under Louisiana law, “[j]udicial inquiry . . . into an
obligor's (or even in some cases an obligee's) good-faith performance of the
obligation is not triggered . . . unless and until we find that the party has failed to
perform an obligation, from which the obligee has sustained damages.” Favrot v.
Favrot, 68 So. 3d 1099, 1109 (La. Ct. App. 2011).
Because the question of whether TB-Elec breached the 2022 PSA is one for
the jury, this Court has not yet found that TB-Elec “has failed to perform an
obligation.” Therefore, under Louisiana law, a determination of whether TB-Elec’s
alleged breach was in good faith or bad faith is not appropriate at this point in the
litigation.15 A determination of whether SES may recover lost profits as damages for
a bad faith breach of contract is also not appropriate until the jury determines
whether a bad faith breach has in fact occurred.
Accordingly, TB-Elec’s motion for summary judgment on Counts II, III, IV,
and V of SES’ Counterclaim is also due to be DENIED.

SES alleges that it “was forced to shut down its joint use division and lay off multiple employees” due to TBElec’s failure to pay. (Doc. 55 ¶ 41.) Therefore, in addition to its other alleged damages, SES seeks to recoup its lost
profits from the closure of its joint use division. (Id. ¶¶ 48, 58, 68, 78, 88.)
15
Even if SES had established that TB-Elec’s failure to pay amounted to a breach of a contractual obligation, there
remains a genuine question of material fact as to whether that failure was performed with “ill will.” Williams v. Coe,
417 So. 2d 426, 430 (La. Ct. App. 1982) (“[B]ad faith is not [] the mere breach of faith in not complying with a
contract, but a designed breach of it from some motive of interest or ill will.”).
14

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C. Fraud & Fraudulent Misrepresentation
TB-Elec and SES each seek summary judgment in their respective favor on
TB-Elec’s fraud and “fraudulent misrepresentation and deceit” claims and its
associated declaratory judgment claim. TB-Elec’s fraud claims are based on the
same set of facts, and the elements of both are the same under Alabama law.
In Alabama, “[t]he elements of fraudulent misrepresentation [and fraud] are:
‘(1) [a] false representation (2) of a material existing fact (3) relied upon by the
plaintiff (4) who was damaged as a proximate result of the misrepresentation.’”
Alabama Psychiatric Servs., P.C. v. 412 S. Ct. St., LLC, 81 So. 3d 1239, 1247 (Ala.
2011) (quoting Coastal Concrete Co. v. Patterson, 503 So.2d 824, 826 (Ala.1987)
(reciting the above elements as the elements of fraud)). However, in claims for fraud
or fraudulent misrepresentation based on “promises or opinions,” Clanton v. Bains
Oil Co., 417 So. 2d 149, 151 (Ala. 1982), “two additional elements must be proved:
(1) the defendant's intention, at the time of the alleged misrepresentation, not to do
the act promised, coupled with (2) an intent to deceive.” Coastal Concrete, 503 So.
2d at 826 (citing Clanton, 417 So. 2d at 151).
TB-Elec alleges that while acting as SES’ representative, Eric Deville falsely
represented that the safety audit would be “a free service” to TB-Elec, when SES
now claims that TB-Elec owes over $1.2 million in payments for the safety audit.
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(Doc. 93 at 54.) TB-Elec alleges that this statement was false, because the safety
audit was not free to TB-Elec, and that the cost of the safety audit was a material
fact that it relied upon in deciding to contract with SES. (Id. at 55-56.) TB-Elec also
alleges that it was damaged by this misrepresentation, because SES now seeks $1.2
million from TB-Elec as payment for the safety audit. (Id. at 56.) Mr. Deville’s
statement about the cost of services is essentially a promise, so TB-Elec must prove
the two additional intent elements to succeed on its fraud claims. Even assuming all
four elements for basic fraud are met, there is still a genuine question of material
fact regarding the additional intent elements.
Mr. Deville testified during his deposition that his email stating “this is a free
service to Tombigbee Elect[r]ic,” was referring to the permitting services included
in the PSA, not the safety audit. According to Mr. Deville, he sent the email from
TB-Elec’s office after discussing with TB-Elec’s employee Mark Carden that
permitting services were free to TB-Elec, but “the safety audit side is a whole
different ball game.” (Doc. 72-6 at 131.) Mr. Deville stated that Mr. Carden asked
him to “put that in an email,” and Mr. Deville “just didn’t word it correctly.” (Id.)
There is sufficient evidence in the record for a jury to find that Mr. Deville
did not “intend . . . not to do the act promised,” because what he believed he had
promised was that the permitting was free, not the safety audit. There is also
sufficient evidence to support a finding that Mr. Deville did not “inten[d] to deceive”
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TB-Elec, but simply worded the email poorly. However, a reasonable jury
considering the text of the email and the evidence of Mr. Deville’s alleged
“reputation for deceitfulness” could also find that Mr. Deville did have the requisite
intent to deceive and not do the act promised. (Doc. 93 at 55.) Therefore, the Court
cannot determine as a matter of law whether Mr. Deville’s statement regarding the
cost of services satisfies the intent elements of fraud or fraudulent misrepresentation
based on a promise. This issue is for the trier of fact to decide.
TB-Elec also alleges that Mr. Deville falsely represented that “SES would
begin getting the necessary notifications out to TB-Elec’s customers/attachers,”
when no notifications were ever actually sent to the attachers. (Doc. 93 at 54.) There
is a genuine question of material fact as to the falsity of this statement that precludes
summary judgment. As previously discussed, there is sufficient evidence for a
reasonable jury to conclude that the referenced notifications to TB-Elec’s attachers
did occur or did not occur. Therefore, the Court cannot determine as a matter of law
whether Mr. Deville’s statement that notifications would be sent out satisfies the first
element of fraud or fraudulent misrepresentation.16 Accordingly, the Court also

16

SES addresses TB-Elec’s fraud claims as if they were raised as affirmative defenses to contract formation rather
than as separate causes of action. For example, SES raises arguments related to consent (doc. 91-1 at 42), parol
evidence (id. at 44), and the presumption that a signatory to a contract knows its terms. (Id. at 49). However, the
instant question is not one of contractual interpretation or enforcement. The only question the Court must ask in
determining whether SES is entitled to summary judgment is whether SES has demonstrated that there are no
genuine questions of material fact and TB-Elec cannot establish the elements of its fraud claims as a matter of law.
Because the Court has determined that TB-Elec’s fraud claims involve questions of material fact to be resolved by
the jury, SES has not met its burden and thus is not entitled to summary judgment.

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cannot enter a judgment declaring whether Mr. Deville’s allegedly fraudulent
statements render the 2022 PSA “void, voidable, or unenforceable.” (Doc. 53 ¶
60(d).)
Accordingly, summary judgment in favor of TB-Elec on Counts II, IV, and
Count III ¶ 60(d) of its Complaint is due to be DENIED. Summary judgment in
favor of SES on the same counts is also due to be DENIED.17
D. Negligence & Willful Misconduct
Finally, in Counts V and VI of its amended complaint, TB-Elec asserts claims
of gross negligence and willful misconduct against SES. TB-Elec also seeks a
declaratory judgment ruling on “[w]hether SES’ gross negligence and/or willful
misconduct provide an exception to any liability on the part of [TB-Elec] pursuant
to” the 2022 PSA’s indemnity provision. (Doc. 53 ¶ 60(e).)

17

This Court would reach the same conclusion even if it agreed with SES that Louisiana law applied to TB-Elec’s
tort claims. In Louisiana, the elements of fraud are “(1) a misrepresentation of material fact, (2) made with the intent
to deceive, (3) causing justifiable reliance with resultant injury.” Chapital v. Harry Kelleher & Co., Inc., 144 So. 3d
75, 86 (La. Ct. App 2014) (quoting Becnel v. Grodner, 982 So.2d 891, 894 (La. Ct. App. 2008). Even if the Court
applied the Louisiana elements of fraud, there are still genuine questions of material fact that preclude the entry of
summary judgment in favor of either party. As discussed in the analysis under Alabama law, there is a question of
material fact as to whether Mr. Deville’s statement that SES would notify the attachers was a misrepresentation,
because there is sufficient evidence to support a conclusion that the notifications did occur or that they did not occur.
Additionally, there is sufficient evidence from which a reasonable jury could find that Mr. Deville did not possess
the requisite intent to deceive when he stated “this is a free service to Tombigbee.” Accordingly, summary judgment
would be due to be denied on Counts II and IV even if the 2022 PSA’s choice of law clause applied to tort claims.

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Under Alabama law, gross negligence and willful misconduct are two separate
theories of liability. “To establish negligence, the plaintiff must prove: (1) a duty to
a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4)
damage or injury.” Lemley v. Wilson, 178 So. 3d 834, 841 (Ala. 2015) (quoting
Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994)). In Alabama, “‘[g]ross
negligence’ is negligence, not wantonness.” Miller v. Bailey, 60 So. 3d 857, 866
(Ala. 2010) (quoting Smith v. Roland, 243 Ala. 400, 403, 10 So.2d 367, 369 (1942))
(internal quotation marks omitted). The most an Alabama court has differentiated
between negligence and gross negligence is by suggesting that gross negligence is
“merely a greater degree of negligence.” Coca-Cola Bottling Co. United v. Stripling,
622 So. 2d 882, 885 (quoting Lynn Strickland Sales & Serv., Inc. v. Aero-Lane
Fabricators, Inc., 510 So. 2d 142 (Ala. 1987) (overruled on other grounds by Alfa
Mut. Ins. Co. v. Roush, 723 So. 2d 1250 (Ala. 1998)) (internal quotation marks
omitted). However, courts have more frequently held that gross negligence is no
different from plain negligence. See, e.g., Fid.-Phenix Fire Ins. Co. v. Lawler, 81
So. 2d 908, 912 (Ala. Ct. App. 1955); Ridgely Operating Co. v. White, 150 So. 693,
695 (1933) (“Ordinarily the word ‘gross,’ when applied to negligence, imports
nothing more than simple negligence”).
Whereas negligence does not require a showing that the defendant acted with
a certain knowledge or intent, “wanton or willful misconduct is characterized as such
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by the state of mind with which the act or omission is done or omitted.” Phillips ex
rel. Phillips v. United Servs. Auto. Ass'n, 988 So. 2d 464, 468 (Ala. 2008) (quoting
Ex parte McNeil, 63 So. 992, 993 (1913)). Specifically, “[i]mplicit in wanton,
willful, or reckless misconduct is an acting, with knowledge of danger, or with
consciousness, that the doing or not doing of some act will likely result in injury.”
Lynn Strickland Sales & Serv., 510 So. 2d at 145.
Here, TB-Elec has failed to sufficiently establish the elements of either claim.
TB-Elec alleges that SES “had a duty to present accurate terms to TB-Elec and to
perform under the terms of the contracts.” (Doc. 93 at 58.) TB-Elec then makes
several conclusory statements that SES “acted with gross negligence and willful
misconduct” by misrepresenting the cost of its services, failing to “meet with, notify,
and involve” TB-Elec’s attachers, failing to present the material terms it changed
between the first and second PSA, and relying on Mr. Deville’s purported knowledge
of who TB-Elec’s attachers were after failing to ask TB-Elec to identify its attachers.
(Doc. 93 at 59.) TB-Elec does not provide any evidence to support these statements,
nor does it specifically articulate how each of the elements of its claims are satisfied.
As previously discussed, TB-Elec has established that SES had a duty to hold
an attacher meeting under the 2022 PSA, and that it breached that duty by not
holding such a meeting. However, just as TB-Elec failed to sufficiently establish the
causation element of its breach of contract claim regarding the attacher meeting, it
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has failed to establish the causation element of its tort claim regarding the same.
Even assuming SES had a duty to notify and involve the attachers separate from its
duty to hold an attacher meeting, there is sufficient evidence for a jury to find in
either party’s favor on the question of whether SES breached that duty. Thus, this
issue is for the trier of fact to decide.
In Alabama, “[w]antonness . . . requires ‘the conscious doing of some act or
the omission of some duty while knowing of the existing conditions and being
conscious that, from doing or omitting to do an act, injury will likely or probably
result.’” Tutor v. Sines, 380 So. 3d 1035, 1038 (Ala. 2023) (quoting Lands v. Ward,
349 So. 3d 219, 229 (Ala. 2021)) (internal quotation marks omitted). Because TBElec has failed to establish that SES’ alleged failure to notify or involve the attachers
was either a conscious act or an omission of duty, TB-Elec has also failed to establish
the elements of willful misconduct regarding these facts.
Additionally, TB-Elec has failed to establish that SES had a duty to disclose
the differences between the unexecuted 2021 PSA and the 2022 PSA. The only
caselaw TB-Elec cites in asserting that such a duty existed is a quotation establishing
that a party to a contract may be liable to a third party for negligently performing
under the contract. (Doc. 93 at 58) (quoting Glasgow v. Jackson Land Surveying,
LLC, 236 So. 3d 111, 115 (Ala. Civ. App. 2017)). This quotation is irrelevant to the
present case, as TB-Elec is not a third party to the contract between itself and SES.
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TB-Elec offers no other factual or legal support for its assertion that SES had a duty
to inform TB-Elec that the 2022 PSA differed from the 2021 PSA beyond simply
providing the 2022 PSA for TB-Elec to review before signing. Therefore, TB-Elec
has failed to sufficiently establish the duty element of its negligence claim regarding
any alleged alterations to the terms of the PSA.
“Under Alabama law, a wantonness claim arising from the alleged omission
of a duty fails as a matter of law when no such duty exists.” Gray v. L.B. Foster Co.
Inc., 761 F. App'x 871, 875 (11th Cir. 2019) (citing Dolgencorp, Inc. v. Taylor, 28
So.3d 737, 746 (Ala. 2009)). Because TB-Elec has not established that SES owed a
duty to disclose the alleged alterations to the terms of the PSA, it has failed to
establish the first element of its negligence claim. As a result, it has also failed to
establish its claim for willful misconduct on the same alleged set of facts.
TB-Elec also has not established that Mr. Deville’s failure to ask for a list of
attachers and reliance on his own knowledge of the attachers’ identities amounts to
gross negligence or willful misconduct. TB-Elec does not provide any evidence that
SES had a duty to ask for a list of attachers earlier than it did, or at all. TB-Elec also
does not cite any evidence that SES’ reliance on Mr. Deville’s prior knowledge of
TB-Elec’s attachers was a breach of duty or a conscious act done with the knowledge
that an injury would likely result. TB-Elec has failed to establish that any of the

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alleged action or inaction taken by SES satisfies all the elements of gross negligence
or willful misconduct, and it is thus not entitled to summary judgment.
Although TB-Elec has failed to sufficiently establish the elements of its
negligence and willful misconduct claims, SES has again failed to demonstrate that
TB-Elec cannot establish those elements. SES argues it is entitled to summary
judgment on the instant claims because “Louisiana law does not recognize gross
negligence or willful neglect as a cause of action, unless a contract or special
legislation provides otherwise” and Paragraph 8 of the PSA “does not serve as a
basis for independent claims of gross negligence and willful misconduct against
SES.” (Doc. 91-1 at 52-53.) However, TB-Elec’s tort claims are governed by
Alabama law. Because SES has not met its burden to show that there are no genuine
questions of material fact and that TB-Elec cannot establish the elements of gross
negligence and willful misconduct under Alabama law, it is also not entitled to
summary judgment on these claims.
Even if Louisiana law applied to TB-Elec’s tort claims, SES’ motion for
summary judgment would still be due to be denied. SES is incorrect in asserting that
Louisiana does not recognize claims of gross negligence or willful misconduct.
“Louisiana courts have frequently addressed the concept of gross negligence.”
Ambrose v. New Orleans Police Dep't Ambulance Serv., 639 So. 2d 216, 219 (La.
1994). “Gross negligence has been defined,” for example, “as the ‘want of even
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slight care and diligence’ and the ‘want of that diligence which even careless men
are accustomed to exercise.’” Id. (quoting State v. Vinzant, 7 So.2d 917, 922 (La.
1942). “There is often no clear distinction between . . . [willful, wanton, or reckless]
conduct and ‘gross' negligence, and the two have tended to merge and take on the
same meaning.” Ambrose, 639 So. 2d at 220 (quoting Falkowski v. Maurus, 637
So.2d 522 (La. Ct. App. 1993)) (alterations in original). Because SES has failed to
demonstrate—or even assert—that TB-Elec cannot establish the Louisiana elements
of gross negligence and willful misconduct as a matter of law, it would not be
entitled to summary judgment even if Louisiana tort law were applicable here.
Because the Court cannot determine at this stage of litigation whether SES
engaged in any gross negligence or willful misconduct, it need not determine
whether this alleged misconduct would “provide an exception to any liability on the
part of TB-Elec pursuant to” the indemnity provision of the 2022 PSA. (Doc. 53 ¶
60(e).) Accordingly, summary judgment in favor of TB-Elec on Counts V, VI, and
Count III ¶ 60(e) is due to be DENIED. Summary judgment in favor of SES on the
same counts is also due to be DENIED.
The Court also notes SES’ argument that it is entitled to attorneys’ fees and
interest on its counterclaims and that TB-Elec is not entitled to attorneys’ fees or
punitive damages on its claims. (See doc. 91-1 at 31, 54, 55.) Because the Court has

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denied both parties’ motions for summary judgment on all counts, it need not make
a determination regarding attorneys’ fees, interest, or punitive damages at this time.
IV. CONCLUSION
For the reasons discussed above, Plaintiff TB-Elec’s Motion to Strike SES’
Motion for Partial Summary Judgment is due to be denied. Defendant SES’ Motion
to Strike the Williams Affidavit and Charter Affidavit is due to be granted in part
and denied in part. Defendant SES’ Motion to Strike the Lightsey Declaration is due
to be denied. Also for the reasons discussed above, Defendant SES’ Motion for
Partial Summary Judgment is due to be denied. Plaintiff TB-Elec’s Motion for
Summary Judgment is also due to be denied. The Court will enter an Order consistent
with this Memorandum of Opinion.
DONE and ORDERED on September 25, 2024.

_____________________________
L. Scott Coogler
United States District Judge
220685

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