CMP, LLC v. Railway Spine Productions, LLC et al

Filing 66

ORDER: IT IS ORDERED that the plaintiff's 24 partial motion for summary judgment is DENIED. The defendants' 40 cross-motion for partial summary judgment is GRANTED in part (as to the plaintiff's entitlement to the Overage Fees) and DENIED in part (as to the plaintiff's entitlement to Site Representative Fees and legal fees). Signed by Judge Martin L.C. Feldman on 2/8/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CMP, LLC

CIVIL ACTION

V.

NO. 16-6850

RAILWAY SPINE PRODUCTIONS, LLC, ET AL.

SECTION F

ORDER AND REASONS
Before the Court are the parties’ cross motions for summary
judgment on three issues.

The plaintiff, CMP, claims that it is

owed “Overage Fees,” “Site Representative Fees,” and reasonable
attorney’s fees and expenses pursuant to a contract entered into
by the parties.

The defendants, Railway Spine Productions, LLC

(“RSP”), Seven Curses Productions, LLC (“SCP”), Abel Meet Cain
Productions, LLC (“AMCP”), and Home Box Office, Inc. (“HBO”), seek
summary judgment in their favor on the same issues.
reasons

that

follow,

the

plaintiff’s

motion

is

For the

DENIED.

The

defendants’ motion is GRANTED in part and DENIED in part.
Background
This litigation arises out of a production company’s use of
private property to film scenes for a television series.

1

CMP owns rural property in the Town of Jean Lafitte, located
in Jefferson Parish, Louisiana.

RSP, a television production

company, entered into a Location Agreement with CMP to use its
property from June to July 2015 to film scenes for a television
series entitled Quarry.

According to the Location Agreement dated

May 12, 2015, the filming would occur from June 9, 2015 to July
28, 2015. This time period consisted of set preparation, shooting,
and wrap periods.

During set preparation, from June 9, 2015 to

July 6, 2015, RSP was to prepare the “Vietnam Village,” “Marine
Barracks,” and “Heroin Dock” sets. RSP would then shoot the scenes
on July 7, 8, 9, and 13, 2015.

The wrap period, during which

property and personnel would be removed from CMP’s property, was
slated to last from July 14, 2015 to July 28, 2015.

The Agreement

obligated RSP to pay CMP $8,000 for prep, another $8,000 for wrap,
and $7,500 for each day of shooting.
The Agreement also provided for CMP to receive additional
fees if certain contingencies came to pass.

According to the

Agreement, RSP would owe CMP $1,500 a day in “Overage” for “each
day property is occupied beyond the term.”

In no other section of

the Agreement or its addendum was this “Overage Fee” provision
further clarified, or even referenced.

The Agreement also bound

CMP to pay $100 per day for each day CMP’s “site representative”
assisted in opening and closing the property. This representative,
per the Agreement, functioned as a “liaison between [CMP] and [RSP]
2

and its designees.”
CMP

and

owner

of

Thomas A. “Tac” Carrere, the sole officer of
the

Jean

Lafitte

property,

admits

that

he

requested the language of these provisions be included in the
Location Agreement.
Paragraph 2 of the Location Agreement empowered RSP to, “after
acquiring any necessary permits, bring any personnel, equipment,
props and temporary sets onto the Property” it deemed necessary or
beneficial to the filming.

However, Paragraph 2 also provided

that RSP “shall completely remove” all such property upon the
project’s culmination (emphasis in Agreement).

All sets, props,

and equipment, the Agreement further stipulated, were to remain
RSP’s property “unless otherwise agreed to in writing.”
Aside from its duty to completely remove anything it brought
onto CMP’s property by the expiration of the term, RSP further
agreed to “provide all clean up” and “return the Property as
received (reasonable wear and tear and hidden and latent defects
excepted)”

pursuant

to

Paragraph

7

of

the

Agreement.

That

paragraph additionally obligated RSP to supply any repair costs in
an amount mutually agreed upon by RSP and CMP.
An addendum to the Agreement later permitted RSP to clear and
burn brush, weeds and trees on the property as part of its creation
of a “Vietnam Village” set, provided RSP remove its set pieces and
any resultant burnt debris by the end of the term.
3

RSP also agreed

to lay down up to three loads of gravel on the property’s existing
roads to counteract any wear and tear its activity would inflict.
To complete preparation and construction tasks for the shoot,
RSP enlisted Barrier Resources LLC, a construction company wholly
owned by Carrere.

In early July, just days before filming began,

Barrier Resources deposited river sand on a small tract of the
property which heavy rains had rendered impassable.
On or around July 20, 2015, in accordance with its contractual
obligations, RSP had removed most its personnel and equipment.
However,

RSP

had

left

behind

refuse,

construction

materials,

equipment, and portions of temporary sets and props, as well as
river sand.

RSP additionally left intact on the property a small

hut erected for the shooting, allegedly at the behest of Carrere
for his children.

Carrere admits suggesting that RSP leave the

hut, but he nevertheless suggests that it remains RSP’s property,
since the parties never agreed to transfer ownership of the hut in
writing.

According to CMP, the hut, the river sand and remnants

from RSP’s sets remain on the property.
CMP submitted to RSP its contractor’s invoice in the amount
of $32,145.74 for remaining clean up and damage repair.

Mickey

Lambert, on behalf of RSP, agreed with the scope of the work
contemplated by the invoice, but not the price; he countered with
changes amounting to a total of $19,214.50.
4

On July 31, 2015, CMP

submitted its contractor’s revised invoice for clean up in the
amount of $19,400.
The parties mutually agreed on that amount for cleanup.
Lambert, however, told CMP that CMP must first execute a release
before RSP paid the $19,400.

CMP fretted that the release might

shield RSP from mitigating any penalties imposed by regulatory
authorities for the failure to acquire the necessary regulatory
permits before the deposit of river sand onto CMP’s property in
early July. As a result, CMP refused to sign the release. 1

The

parties reached an impasse.
On April 22, 2016, CMP sued RSP, SCP, AMCP, and HBO in state
court for breach of contract, defamation, and trespass. In its
petition, CMP listed five breaches of the Agreement: (1) a failure
to obtain necessary permits prior to occupying CMP’s property, in
particular, before depositing river sand on CMP’s wetlands; (2) a
failure to completely remove RSP’s property from the site and
failure to restore CMP’s property to its pre-work condition; (3)
a failure to pay the Site Representative Fee ($100/day) since June
18, 2015; (4) a failure to pay the Overage Fee ($1,500/day) from

1

CMP hired a lawyer to draft a release that did not waive the
indemnity provisions in the Agreement. The release was forwarded
to the defendants on August 15, 2015 and included a provision that
HBO shall be the guarantor of the indemnity provision in the
Agreement. Defendants countered with yet another release that was
unacceptable to CMP.
5

July 29, 2015 due to RSP’s continuing occupation of the property;
and

(5)

an

attempt

to

impose

unauthorized

and

overreaching

conditions on CMP in return for their obligation to pay for the
cleanup of CMP’s property.

CMP also sought to recover a portion

of the income generated by Quarry. On May 23, 2016, the defendants
removed the case to this Court, invoking the Court’s diversity
jurisdiction. 2

The defendants moved to dismiss CMP’s defamation

claim and its claim to recover income from Quarry.
6,

2016

Order

and

Reasons,

this

Court

In its October

granted

the

motion,

dismissing the plaintiff’s defamation claim and claim seeking a
percentage of income derived from the production of Quarry.

In

early November, the parties agreed to settle CMP’s claim for a
breach of the obligation to clean and restore its property. The
settled claim entails only RSP’s alleged duty of
removing debris and partial sets and props
left behind on CMP’s Property, removal of dead
and burned trees on CMP’s Property caused by
RSP’s activities thereon, levelling grading
and applying limestone to roads on CMP’s
Property damaged by RSP’s equipment, and
repairing a levee damaged by RSP’s equipment
on CMP’s Property.

2

The defendants later filed a third-party complaint against
Carrere individually and Barrier Resources for indemnification and
contribution for any liability arising out of the failure to
procure permits for the depositing of the river sand on the
property.
6

CMP now seeks partial summary judgment.

CMP claims that it

has established, as a matter of law, that: (1) pursuant to the
Location Agreement RSP is liable for $1,500 a day in “Overage Fees”
for every day since July 28, 2015 during which RSP has failed to
“completely

remove”

its

property

from

CMP’s

property

and

to

complete its repair and refurbishment obligations; (2) pursuant to
the Agreement, RSP owes CMP $100 a day in “Site Representative
Fees” for every day between June 18, 2015 and July 28, 2015; and
(3) RSP is liable for reasonable attorney’s fees and expenses
incurred by CMP in the enforcement of RSP’s obligation to pay the
aforementioned Overage and Site Representative Fees under the
Location Agreement.

The defendants, in their cross motion, assert

that the record supports dismissal of all three claims.
I.
A.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The

mere argued existence of a factual dispute does not defeat an
otherwise properly supported motion.

See id.

Ultimately, "[i]f

the evidence is merely colorable . . . or is not significantly
probative," summary judgment is appropriate. Id. at 249 (citations
omitted); see also Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
2007) (internal quotation marks and citation omitted) (“[T]he
nonmoving party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of
evidence.”); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994)
(“Unauthenticated

documents

are

improper

as

summary

judgment

evidence.”).
In deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most favorable
to the nonmoving party.
(citations omitted).

Scott v. Harris, 550 U.S. 372, 378 (2007)
Although the Court must "resolve factual

controversies in favor of the nonmoving party," it must do so "only
where there is an actual controversy, that is, when both parties
have submitted evidence of contradictory facts."

Antoine v. First

Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation
marks and citation omitted).

8

B.
Because this Court has invoked diversity jurisdiction, the
substantive issues of this case are governed by Louisiana law.
Travelers Cas. & Sur. Co. of Am. v. Wright Ins. Agency Inc., 404
F.3d

927,

928

(5th

Cir.

2005).

Interpreting

a

contract

in

accordance with Louisiana law requires a court to attempt to
determine the common intent of the parties.

LA. CIV. CODE art.

2045. Pursuant to Louisiana Civil Code Article 2046, “when the
words of a contract are clear and explicit and lead to no absurd
consequences, no further interpretation may be made in search of
the parties’ intent.”

LA. CIV. CODE art. 2046; see In re Liljeberg

Enters., Inc., 304 F.3d 410, 440 (5th Cir. 2002).

Courts must

grant the words of a contract their “generally prevailing meaning”
in ascertaining their effects. LA. CIV. CODE art. 2047. Each
contractual provision should be interpreted in the context of the
contract’s other provisions and its suggested meaning as a whole.
LA. CIV. CODE art. 2050; see Greenwood 950, L.L.C. v. Chesapeake
Louisiana, L.P., 683 F.3d 666, 669 (5th Cir. 2012).
A

court

contractual

may

grant

provision

at

summary
issue

is

judgment

susceptible

interpretation within its four corners.
F.3d at 668.

if

a
to

contract

or

unambiguous

See Greenwood 950, 683

If, however, two or more reasonable interpretations

of the words of a contract exist, the ambiguity is strictly

9

construed

against

the

drafter.

LA.

CIV.

CODE

art.

2056;

see

Liljeberg, 304 F.3d at 440; Sims v. Mulhearn Funeral Home, Inc.,
956 So. 2d 583, 590 (La. 2007).

Mindful of these commonsense

principles, the Court turns to consider whether either side is
entitled to judgment as a matter of law concerning plaintiff’s
contractual entitlement to overage fees, site representative fees,
or attorney’s fees and expenses.
II.
A.
In papers rife with meandering and opaque reasoning, the
plaintiff essentially argues that the Overage Fee provision in the
Location Agreement was intended to function as a stipulated damages
clause.

CMP asserts that RSP’s promise to pay CMP $1,500 a day

for each day the property is “occupied” beyond the term constituted
a promise to pay $1,500 for each day RSP 1) failed to “completely
remove” its property from the Jean Lafitte property in accordance
with Paragraph 2 of the Location Agreement and 2) failed to repair
and refurbish CMP’s property pursuant to Paragraph 7.
CMP

has

attached

to

its

motion

several

photographs—some

timestamped July 30, 2015, others on September 29, 2015—which
purport to show the small hut left intact after the shooting,
remnants of sets and props, river sand, and two porta potties.
These exhibits, CMP insists, prove as a matter of law that the
10

defendants have continuously “occupied” CMP’s property well past
the Agreement’s expiration. 3
photographs

are

The defendants complain that the

unauthenticated

and

competent summary judgment evidence.
reach

the

gallery.

evidentiary

issues

posed

thus

cannot

constitute

However, the Court need not
by

the

plaintiff’s

photo

Even if the photographs pass evidentiary muster and the

photographed items remain on the set to this day, the defendants
are not obligated to pay CMP any overage.

CMP’s argument belies

both sound principles of language construction and common sense.
The word “occupied” appears once in the Location Agreement,
in the portion of the “Additional Fee[s]” paragraph stipulating
that RSP owes CMP $1,500 a day “for each day property is occupied
beyond the Term.” 4

It is not defined or clarified in any other

section of the Agreement. Therefore, in ascertaining the parties’
common intent in including “occupied” in the Overage Fee provision,
the Court must turn to the word’s generally prevailing meaning and
evaluate it in the context of the Agreement’s other provisions.

3

CMP persists in this claim despite the “clean up” claims resolved
by the November 2016 settlement agreement.
4 The Additional Fees provision states:
Producer will pay to Owner $1,500.00 per day, (the
“Overage”) for each day property is occupied beyond the
Term. Overage to be paid each Friday occurring after
Term. Producer agrees to pay Owner’s site representative
$100.0 [sic] (one hundred dollars) per day to open and
close the property. Site representative to be designated
by Owner and to act as liaison between Owner and Producer
and its designees.
11

The

Location

Agreement

is

most

akin

to

a

lease:

while

retaining ownership of the Jean Lafitte property, CMP permitted
RSP and the defendants to bring equipment and personnel onto the
land for a fixed period of time to film Quarry.

Under Louisiana

law, the term “occupy” typically denotes physical presence and
activity on another’s property in the context of a lease agreement.
See, e.g., Pioneer Exploration, L.L.C. v. Steadfast Ins. Co., 767
F.3d 503, 506, 513 (5th Cir. 2014) (holding that a company with a
mineral rights lease “occupied” the surface land because the land
was under its “care, custody and control”); LeBlanc v. Romero, 783
So. 2d 419, 421 (La. App. 3 Cir. 2/28/01) (finding that the phrase
“permanently occupy” in an act of sale for a tract of land meant
to

“permanently

reside

thereon”).

Webster’s

Third

New

International Dictionary features 12 definitions for the word
“occupy.” Occupy, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED
(1961). Of those, only two could plausibly apply to the word’s
role in a contract granting a television producer the right to
film and produce a series on a tract of land: “to hold possession
of” or “to reside in as an owner or tenant.” Id. Similarly, Black’s
Law Dictionary defines “occupy” (inter alia) as “to take up the
extent, space, room, or time of,” “to hold possession of; to be in
actual possession of,” and “to live or stay in (a place).” Occupy,
BLACK’S LAW DICTIONARY (10th ed. 2014).

12

Given these definitions and the prevailing nature of the
word’s use in lease-type agreements, it is evident that the word
“occupy” in the Overage Fee provision refers to RSP’s right under
Paragraph 1 of the Agreement to “enter and remain on the Property
to complete all scenes and work and to photograph, film, tape,
record and reproduce the Property and scenes thereon[.]”

The

provision simply guaranteed CMP daily overage for each additional
day RSP and the defendants failed to finish what they came to do:
use the land to film a television series. 5

To suggest that both

parties instead understood that the presence of a single hut,
wooden platforms and river sand would constitute “occupying” the
property is to defy the word’s clear meaning within the four
corners of the Agreement.
In support of its position, CMP invokes the Louisiana Supreme
Court’s decision in Lama v. Manale, 50 So. 2d 15 (La. 1950).

A

provision in a lease agreement obligated the tenant defendants to
pay five times the daily rent for each day after the lease term’s
expiration that they failed to “surrender possession” of the
premises.

Id. at 16.

The provision explicitly defined surrender

5

The Court emphasizes that this is the only reasonable
interpretation of the meaning of “occupy.” Assuming arguendo that
the word’s meaning were ambiguous in this context, the Court would
still construe its meaning against CMP, since Carrere has admitted
that he introduced the Additional Fees language into the Location
Agreement. LA. CIV. CODE art. 2056; see Liljeberg, 304 F.3d at
440; Sims, 956 So. 2d at 590.
13

as the “actual delivery of all keys at Lessor’s place of business,
the premises to be left broom clean and trash removed.” Id. The
Supreme Court held that the provision bound the tenants. Id. at
517-18.
However, this case is inapposite for two reasons. First,
unlike the defendants in this case, the tenants in Lama physically
remained on premises and refused to leave; the case was not decided
on the basis of the defendants’ failure to leave the premises
“broom clean.”

See Lama v. Manale, 34 So.2d 55, 56 (La. 1948).

Second, the contract in Lama included a specific reference to the
obligation

to

clean

the

apartment

in

the

liquidated

damages

provision missing from the Overage Fee provision in the Location
Agreement.

See Lama, 50 So. 2d at 16.

Absent any definition in

the lease agreement to the contrary, it would be patently absurd
for a landlord to claim that an outgoing tenant was “occupying”
the apartment past the lease’s term merely because she left a lamp
and a few pots and pans behind after otherwise moving out.
The Louisiana Third Circuit’s decision in Klumpp v. Colonial
Pipeline Co., invoked by the defendants, provides more helpful
reasoning in similar circumstances. 389 So. 2d 457 (La. Ct. App.
3 Cir. 1980). In Klumpp, a landowner granted a 50-foot right-ofway servitude to an oil company for a pipeline.

Id. at 464.

The

servitude agreement stipulated that Colonial would pay $200 a day

14

in

damages

for

each

day

it

“remain[ed]”

landowner’s property in excess of 60 days.

on

the

Id. at 465.

plaintiff
A separate

provision entitled the plaintiff to $15 an acre (but no more than
$2,400 total) for the cost to “restore the land and levees to their
former condition.” Id. After the pipeline company vacated the
premises without completing the clean-up process, the trial court
awarded the plaintiff $200 a day in stipulated damages, retroactive
to the day the plaintiff sent written notice demanding completion
of the project. Id. at 466-67.

On appeal, the Third Circuit

reversed. Id. at 467-70. The oil company successfully argued that
the $200 a day stipulated damages provision was triggered only by
a breach of its primary obligation: to complete its pipeline work
within 60 days.

See id. at 467-69.

That the company breached its

separate obligation to “restore” the land after completion of its
work therefore did not subject it to the draconian $200 a day
penalty. See id. at 468-70.
CMP attempts to distinguish Klumpp by emphasizing that while
that servitude agreement included two stipulated damages clauses—
one for “remaining” on the property past 60 days and another for
failing to restore the land—the Location Agreement contains only
the single Overage Fee provision.

See id. at 465.

The Overage

Fee clause, per CMP’s logic, applies to the defendants’ obligation
“not only to clean up and restore Plaintiff’s Property to preproject conditions, but also to completely remove their property
15

from the Plaintiff’s property.”

CMP’s view of Klumpp, however,

misses the forest for the trees. The Klumpp decision underscores
the function of a stipulated damages clause in Louisiana law: to
impose a “secondary obligation for the purpose of enforcing the
principal” obligation articulated in the provision.

See LA. CIV.

CODE art. 2005. Just as the $200 a day provision explicitly referred
to the oil company’s primary obligation to complete its pipeline
work within 60 days, the Overage fee provision explicitly refers
to the defendants’ primary obligation of ceasing to “occupy” the
Jean Lafitte property to film Quarry. See Klumpp, 389 So. 2d at
468-70. That the Location Agreement contains no other stipulated
damage

provisions

specifically

covering

the

defendants’

obligations to “completely remove” their property and “repair and
refurbish” the land does not render the Overage Fee provision some
all-encompassing

penalty

clause

affording

CMP

damages

for

obligations other than that of ceasing occupancy after the term.
The negative does not create the positive CMP wants.
CMP additionally attempts to contort the defendants’ postterm conduct into an ongoing trespass and the Overage Fee provision
as a stipulated damage clause triggered by that trespass. This
argument is without merit. Under Louisiana law, a trespass occurs
“when there is an unlawful physical invasion of the property or
possession of another.”

Bourquard v. L.O. Ausauma Enters., Inc.,

52 So.3d 248, 251 (La. App. 4 Cir. 11/17/10) (quoting Richard v.
16

Richard, 24 So. 3d 292, 296 (La. App. 3 Cir. 11/04/09)).

Although

CMP provides jurisprudence which purportedly supports its trespass
theory, the cases it cites feature 1). physical invasions far more
substantial than the defendants’ post-Agreement “intrusion” or 2).
conditions

to

which

the

property

owners,

unlike

CMP,

never

consented. See, e.g, Angus Chem. Co. v. Glendora Plantation, Inc.,
No. 12–1656, 2015 WL 4489344, at *4 (W.D. La. July 23, 2015)
(declining to reach the plaintiff’s arguments that the defendant’s
abandonment of a pipeline past a lease’s expiration constituted a
bad faith trespass); Corbello v. Iowa Prod., 850 So. 2d 686, 70809 (La. 2003), superseded by statute (finding an oil company liable
for contractual damages for actual operation of an oil well on the
plaintiff’s land past the lease term’s expiration); Estate of
Patout v. City of New Iberia, 813 So.2d 1248, 1252-53 (La. App. 3
Cir. 4/3/02) (involving defendant that never had permission to
deposit garbage on plaintiff’s land); Gaspard v. St. Martin Par.
Sewerage Dist. No. 1, 569 So. 2d 1083, 1084 (La. Ct. App. 3d Cir.
1990) (holding that the placing of a sewerage line on plaintiff’s
land

without

permission

subjected

the

defendant

to

trespass

liability); Vial v. S. Cent. Bell Tel. Co., 423 So.2d 1233, 1235
(La. Ct. App. 5th Cir. 1982) (telephone company committed trespass
by constructing sinkholes on plaintiff’s land without permission);
but cf. Lakes of Gum Cove Hunting & Fishing v. Weeks Marine, Inc.,
145 Fed. Appx. 949, 952-53 (5th Cir. 2005) (dismissing trespass
17

claim when plaintiff noticed dredging material being deposited
onto its property but did not object until bringing suit).
Contrary to CMP’s assertions, then, refusal to award overage
fees for the defendants’ failure to remove the hut or wooden
platforms or clean up the river sand 6 render the Additional Fees
provision

“mere

surplusage.”

Rather,

the

Overage

Fee

clause

clearly and explicitly covers the defendants’ obligation not to
“occupy”—or be physically present on for the purpose of filming a
television

series—the

Jean

Lafitte

property.

Accordingly,

the

Court must reject CMP’s attempt to siphon hundreds of thousands of
dollars off the defendants for “occupying” a property they have
not used for filming in more than 18 months. 7
B.
An additional clarification is appropriate before leaving
this issue.
of

RSP,

Mickey Lambert and Virginia McCollam, representatives

have

submitted

sworn

6

statements

claiming

that

the

Both parties devote reams of precious argument space to
squabbling over who first suggested to whom that the river sand be
hauled in—an issue important to other pending issues in this
lawsuit but wholly immaterial to the question of whether the
defendants’ conduct constitutes occupancy.
7 It is worth noting that Louisiana Civil Code Article 2015 empowers
a court to employ its discretion to lower a stipulated damages
award in the interest of public policy. Even if the Overage Fee
provision applied to the defendants’ conduct, CMP can rest assured
that the Court would have invoked its discretion to prevent it
from recovering a king’s ransom for leaving items it could have
easily and frugally removed itself on its own property.
18

defendants physically vacated the premises and wrapped up filming
by the July 28, 2015 expiration of the Location Agreement’s term.
CMP has furnished no competent summary judgment evidence refuting
that assertion. However, CMP does point to a text message from
McCollam sent in August 2015, which purportedly references an oral
agreement to add $1,500 in overage (one days’ worth) and $4,100 in
Site Representative Fees to the $19,400 cleanup invoice. 8
In Louisiana, testimonial or other evidence can show the
existence of a valid oral modification to a written agreement.

LA.

CIV. CODE art. 1848; Duvio v. Specialty Pools Co., LLC, No. 2015–
CA–0423,

2016

WL

3348855,

at

*1

(La.

App.

4

Cir.

6/16/16);

Schindler Elevator Corp. v. Long Property Holdings, L.L.C., 182
So.3d 233, 240-41 (La. App. 2 Cir. 11/18/15).

Because the only

evidence in the record of this purported agreement consists of a
stray

text

message

alluding

to

a

$25,000

payment--$25,000

apparently being the sum of $19,400, $4,100 and $1,500—CMP has not
shown entitlement to judgment as a matter of law that RSP made a
legally enforceable oral promise to CMP. 9

The Court stresses,

however, that the existence of such an oral agreement does not

8

As described in the factual background, the negotiations to have
RSP pay this $19,400 collapsed upon CMP’s refusal to release RSP
from any liability stemming from the failure to acquire permits
for the depositing of river sand.
9 Indeed, it is not clear that CMP seeks judgment as a matter of
law on this more discrete issue, given that the issue of an oral
modification was only raised by way of its reply papers.
19

disturb a granting of summary judgment on the Overage Fee claim to
the defendants.

The oral modification, if proved, would merely

obligate RSP to pay the $1,500 in “overage” it allegedly promised;
it would not distort the clear meaning of the Overage Fee provision
to conform to the plaintiff’s desires and entitle the plaintiff to
a six-figure overage windfall.

Accordingly, an entry of summary

judgment

on

for

the

defendants

the

Overage

Fee

issue

is

appropriate. 10
III.
CMP also claims that it has established beyond a triable issue
of

fact

that

the

defendants

owe

41

days’

worth

Representative Fees pursuant to the Location Agreement.

of

Site

The Site

Representative Fee provision mandates that CMP receive $100 a day
for

each

day

its

representative

helps

“open

and

close”

the

property.
The defendants do not deny that they have yet to pay the
$4,100 in Site Representative Fees CMP requests. They instead
complain

about

CMP’s

previous

10

attempt

to

extract

Site

Despite deep misgivings about encouraging the prolonging of this
litigation, the Court reminds CMP that it remains free to continue
seeking enforcement of this purported oral agreement, as well as
damages for the defendants’ alleged failure to completely remove
property, repair and refurbish the property, or acquire necessary
permits before depositing river sand.
20

Representative Fees for each day they sought overage, an attempt
CMP did not revive in this motion for partial summary judgment.
In showing that the defendants have failed to pay the $4,100,
however, CMP has failed to adequately demonstrate why it should
receive $100 for each day between June 18 and July 18, 2015.
Namely, CMP has not shown that a site representative aided in
opening or closing the property for each and every one of the days
for which it requests fees.

In emails exchanged between the

parties shortly after the term’s expiration, RSP expresses a desire
to verify that a CMP representative helped open and close the
property for each of the 41 days from mid-June to late July.
Although CMP insists that the provision was intended to cover every
day of the Agreement’s term, the Agreement itself only clearly
affords the CMP representative $100 a day “to open and close” the
property. 11

Because

neither

party

has

supplied

evidence

demonstrating beyond a genuine issue of material fact that a CMP
representative did or did not help “open or close” the property
for any or all of the 41 days at issue, the Court cannot grant
summary judgment to either party on this issue.

11

Since neither party has seriously addressed this issue, the
Court will forego analysis of any ambiguity in the terms “open and
close” until the parties provide a factual predicate supporting
whether or not a CMP representative was present or assisting RSP
on each of the days in the question.
21

IV.
Finally, CMP seeks reasonable attorney’s fees and expenses
incurred

in

its

effort

to

enforce

Representative Fee provisions.

the

Overage

Fee

and

Site

Again, both sides seek summary

relief in their favor on this issue.
Paragraph 6 unequivocally entitles CMP to “all reasonable
outside attorneys’ fees and costs . . . if it must file suit or
retain counsel to enforce the terms of this Agreement.”

For the

reasons articulated above, CMP is not entitled, as a matter of
law, to any legal fees expended in the attempt to charge the
defendants $1,500 a day in overage.

It may, however, recover

reasonable expenses to the extent needed to enforce any right it
may have to outstanding Site Representative Fees, should it prevail
on that issue at trial. 12

At this juncture, awarding or denying

attorney’s fees and legal costs for CMP’s effort to collect under
the Site Representative Fee provision is premature.

As a result,

the defendants’ motion for partial summary judgment is granted in
part and denied in part.
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the plaintiff’s partial motion for summary judgment is DENIED. The

12

If CMP succeeds on any of its remaining breach of contract
claims, it will also be entitled to reasonable fees and expenses
to the extent necessary to enforce those.
22

defendants’ cross-motion for partial summary judgment is GRANTED
in part (as to the plaintiff’s entitlement to the Overage Fees)
and DENIED in part (as to the plaintiff’s entitlement to Site
Representative Fees and legal fees).

New Orleans, Louisiana, February __, 2017
8

________________________
MARTIN L.C. FELDMAN
U.S. DISTRICT JUDGE

23