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

Filing 94

ORDER AND REASONS: ORDERED that the defendants' 72 Motion for Summary Judgment is GRANTED in part insofar as the defendants are entitled to judgment as a matter of law dismissing the plaintiff's claims for breach of contract for failure t o secure permits, breach of contract for attempt to impose unauthorized condition, and trespass and DENIED in part insofar as the plaintiff's claim for breach of site representative fee provision and its claim for contractual attorney's fees remain for trial. Signed by Judge Martin L.C. Feldman on 4/5/2017. (clc)

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 is a motion for summary judgment filed by
defendants, Railway Spine Productions, LLC (“RSP”), Seven Curses
Productions,

LLC

(“SCP”),

Abel

Meet

Cain

Productions,

LLC

(“AMCP”), and Home Box Office, Inc. (“HBO”) in which they seek
judgment as a matter of law dismissing the remaining claims of the
plaintiff, CMP, LLC (“CMP”).

For the reasons that follow, the

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.
CMP owns rural property, consisting of federally-designated
wetlands, in the Town of Jean Lafitte, located in Jefferson Parish,
Louisiana.

RSP, a television production company, entered into a
1

Location Agreement with CMP to use a portion of 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.
7, 8, 9, and 13, 2015.

RSP would then shoot the scenes on July
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.”
bound

CMP

to

pay

$100

per

day

for

each

The Agreement also
day

CMP’s

“site

representative” assisted in opening and closing the property. This
representative,

per

the

Agreement,

functioned

between [CMP] and [RSP] and its designees.”
Carrere

is

the

manager

of

CMP,

2

which

owns

as

a

“liaison

Thomas A. “Tac”
the

Jean

Lafitte

property. 1

Carrere admits that he requested the language of these

provisions be included in the Location Agreement.
Also

at

Carrere’s

request,

Paragraph

2

of

the

Location

Agreement obliges RSP to acquire “all necessary permits” before
using

the

property. 2

Paragraph

2

of

the

Location

Agreement

empowered RSP to, “after acquiring any necessary permits, bring
any

personnel,

Property”

it

equipment,

deemed

props

necessary

or

and

temporary

beneficial

to

sets
the

onto

the

filming.

However, Paragraph 2 also provided that RSP “shall completely
remove” all such property upon the project’s culmination (emphasis
in Agreement).
further

All sets, props, and equipment, the Agreement

stipulated,

were

to

remain

RSP’s

property

“unless

otherwise agreed to in writing.”
Aside from its duty to completely remove property 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

Carrere submits that his three children are the beneficiaries of
a trust that has ownership interest in CMP.
2 Carrere made this request, he says, based on his knowledge of
local, state, and federal permit regulations that apply to CMP’s
property because it is located in the Louisiana Coastal Zone.
3
1

paragraph additionally obligated RSP to supply any repair costs in
an amount mutually agreed upon by RSP and CMP. 3
To complete preparation and construction tasks for the shoot,
RSP enlisted Barrier Resources LLC, a construction company managed
by Carrere and of which he is a member.

In early July, just days

before filming began, Barrier Resources deposited river sand on a
small

tract

impassable. 4

of

the

property

which

heavy

rains

had

rendered

RSP paid a total of $117,886.76 to Barrier Resources

for all of its work during filming.
On or around July 20, 2015, in accordance with its contractual
obligations, RSP had removed most of its personnel and equipment.
However,

RSP

had

left

behind

refuse,

construction

materials,

equipment, and portions of temporary sets and props.

The river

3

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. 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.
Whether Carrere recommended to RSP that it should purchase river
sand from and have it deposited on the property by Barrier
Resources is disputed. Whether Carrere represented to RSP that he
was experienced in matters of coastal restoration and whether he
represented to RSP that no permits were necessary for depositing
river sand on the property is disputed.
The circumstances of
depositing the river sand is also disputed.
4

4

sand also remained behind on the property.

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 because the parties never
agreed in writing to transfer ownership of the hut.

According to

CMP, the hut, the river sand, and remnants from RSP’s sets remained
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.

During

the

negotiations surrounding clean up, according to RSP, CMP never
demanded that RSP remove the river sand. 5

On July 31, 2015, CMP

submitted its contractor’s (Barrier Resource’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 was concerned that the release

Carrere admits he never insisted that the river sand be removed,
but he says that is so because he assumed that permits had been
obtained in advance of the sand’s placement.
5
5

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. 6

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
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.

6

On May 23, 2016, the defendants

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.
6

removed the case to this Court, invoking the Court’s diversity
jurisdiction.

The defendants later filed a third party complaint

against Thomas Carrere and Barrier Resources. 7
The defendants first moved to dismiss CMP’s defamation claim
and its claim to recover income from Quarry.

In an October 6,

2016 Order and Reasons, this Court granted the motion, dismissing
the plaintiff’s defamation claim and its claim seeking a percentage
of

income

derived

from

the

production

of

Quarry.

In

early

November, the parties agreed to settle CMP’s claim for 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.

Meanwhile, CMP moved for partial summary judgment.

CMP

claimed that it demonstrated, 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

The third party plaintiffs seek indemnification and contribution
for any liability arising out of the failure to procure permits
before depositing river sand on the property.
7
7

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 filed a cross-motion for

partial summary judgment, asserting that the record supported
dismissal of the overage fee, site representative, and attorney’s
fees claims. On February 9, 2017, the Court denied the plaintiff’s
motion for partial summary judgment and granted in part and denied
in part the defendants’ motion.

The Court determined that the

plaintiff was not entitled to overage fees, but that factual
controversies precluded summary judgment on the issues of the
plaintiff’s entitlement to site representative fees and legal
fees.

See Order and Reasons dtd. 2/9/17.
Now the defendants seek summary relief on the plaintiff’s

remaining claims.

8

II.
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."
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.

In this regard,

the non-moving party must do more than simply deny the allegations
raised by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

opposing evidence.

at

trial

do

not

qualify

as

competent

Martin v. John W. Stone Oil Distrib., Inc.,
9

819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
"[T]he

nonmoving

conclusory

party

allegations,

scintilla of evidence."

cannot

defeat

unsubstantiated

summary

judgment

assertions,

or

with

only

a

Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007)(internal quotation marks and citation omitted).
Ultimately, "[i]f the evidence is merely colorable . . . or is not
significantly probative," summary judgment is appropriate.

Id. at

249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994) (“Unauthenticated documents are improper as summary judgment
evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case.

See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 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.

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).

10

B.
In exercising 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 may grant summary judgment if a contract or

contractual

provision

at

issue

is

susceptible

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

to

unambiguous

See Greenwood 950, 683

If, however, two or more reasonable interpretations

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

against

the

drafter. LA. CIV. CODE
11

art.

2056;

see

Liljeberg, 304 F.3d at 440; Sims v. Mulhearn Funeral Home, Inc.,
956 So. 2d 583, 590 (La. 2007).
Louisiana law instructs that a party to a contract is “liable
for the damages caused by his failure to perform a conventional
obligation.”

LA. CIV. CODE art. 1994.

Civil Code article 1995

instructs that damages for a breach of contract cause of action
“are measured by the loss sustained by the obligee and the profit
of which he has been deprived.”

A plaintiff alleging breach of

contract under Louisiana law “has the burden of proving damage and
its amount.”

Arthur J. Gallagher & Co. v. Babcock, 703 F.3d 284,

293-94 (5th Cir. 2012)(citation omitted).

Indeed, “proof of

damages is an essential element to a breach of contract claim.”
Sanga v. Perdomo, 167 So.3d 818, 822 (La.App. 5 Cir. 2014).
Mindful of these commonsense principles, the Court turns to
consider whether the defendants are entitled to judgment as a
matter of law concerning the plaintiff’s remaining claims for
breach of contract (for failure to procure permits for river sand
and for failure to pay more in site representative fees) and for
contractual attorney’s fees.

The Court then finally considers

whether the defendants are entitled to judgment as a matter of law
dismissing the plaintiff’s trespass claim.

12

II.
A.

CMP’s Breach of Contract for Failure to Acquire
Permits for River Sand

The defendants submit that the Location Agreement does not
oblige RSP to acquire environmental permits.

The plain language

of the Agreement, RSP submits, requires RSP to obtain permits
before doing four specifically enumerated production tasks, none
of which have anything to do with environmental permits.

RSP

submits that sand was deposited on the property to address poor
weather conditions that caused excess rain and mud, not as props
for its show.

CMP counters that the Court may only consider

whether the Location Agreement provides that RSP was obligated to
obtain permits in this case and whether RSP must indemnify CMP if
adverse regulatory action is taken, but that the Court lacks
jurisdiction to determine the scope of the damage caused to the
wetlands.

CMP argues:

The parties agree that the federal and state regulatory
permits were required to deposit river sand on CMP’s
property. Yet they argue that it was Carrere’s or BR’s
obligation to do so. That determination must be made
administratively by either the LA Department of Natural
Resources (“LADNR”) or the US Army Corps of Engineers
(“USACE”), which will define the scope of the work and
mitigation that will need to be done in connection with
the permit process.
This Court lacks subject matter
jurisdiction to do so initially.... Likewise, under
Section 404 of the Federal Clean Water Act...this court
does not have original jurisdiction to adjudicate the
13

wetlands permit issues in this case.... In this case,
there has been no state or federal agency action with
regard to RSP’s depositing of river sand on CMP’s
Jurisdictional Bottomland Hardwood wetlands.

According to CMP, RSP materially breached the parties’ agreement
in failing to procure permits from the Secretary of the U.S. Army
Corps of Engineers and the Secretary of the Louisiana Department
of

Natural

property.

Resources

prior

to

depositing

river

sand

on

the

Notably, CMP admits that it has suffered no damages for

this alleged breach, but speculates that it may suffer damages in
the future if adverse regulatory action is ever taken.
To determine whether RSP breached the Location Agreement by
failing to obtain environmental permits before depositing river
sand, the Court first considers the relevant language of the
Location Agreement.

Paragraph 2 states:

Producer may during the Term of this agreement and after
acquiring any necessary permits: (a) bring personnel,
equipment, props and temporary sets onto the Property,
provided Producer shall completely remove the same upon
completion of work and all sets, props and equipment
shall remain Producer’s property unless otherwise agreed
to in writing by Owner and Producer. Equipment, props
and temporary sets shall not become fixtures by reason
of their use on the Property; (b) visit, story-board, or
otherwise inspect the Property at reasonable times and
after reasonable notice to Owner’s designated site
representative, to plan and set up prior to photography;
(c) re-enter the Property after completion of principal
photography for the purpose of making added scenes and
retakes on a date or dates mutually agreed to by Owner
and Producer and provided Producer compensates Owner in
14

the same manner as described above as Location Fee and/or
Additional Fee(s); and (d) use the real and/or
fictionalized name(s) of the Property.
The rights
granted herein are in addition to and shall not limit
any rights which Producer may have or enjoy as a member
of the public.

This provision obliges RSP to acquire “necessary” permits for
equipment, props, and temporary sets. The parties’ dispute focuses
on whether or not “necessary” is ambiguous and should be construed
against the plaintiff; and, even if not, whether the sand was a
“prop” or part of a “temporary set” for which the defendants should
have obtained permits, or, instead, whether the sand was used at
Carrere’s suggestion to ameliorate poor conditions caused by bad
weather.

Fortunately, the Court need not wade into the depths of

the many facets 8 of this breach issue -- factual controversies that

8

Among other things, the parties dispute: whether Carrere had
begun restoration work on the property (which presumably would
have required permits) prior to the execution of the Location
Agreement; whether Carrere recommended that sand be laid down to
address poor road conditions and whether he showed RSP where sand
had previously been brought on the property (which would have
required permits); whether Carrere was ever asked whether permits
were necessary and whether he answered in the negative; whether
any sand was brought on the property to serve as a prop or part of
a temporary set; whether Carrere’s sworn statements that he
(through Barrier Resources) agreed to bring sand on the property
only on the assumption that RSP had secured federal and state
permits is credible in light of the evidence in the record
regarding Carrere’s knowledge regarding environmental permits and
the defendant’s expert report regarding such permits. For each of
these issues, the defendants submitted affidavits or other record
evidence in support of their position and the plaintiff submitted
more than one affidavit by Carrere in which he controverts the
15

would otherwise preclude summary judgment -- because the plaintiff
has failed to submit evidentiary support for an essential element
of its breach of contract claim:

there is no record evidence that

CMP has been damaged by the failure to acquire permits for sand.
Here, the defendants are entitled to judgment as a matter of
law dismissing the plaintiff’s breach of contract claim regarding
the failure to acquire permits for sand because the plaintiff has
failed to submit any evidence in support of the damages element of
its claim.

Absent from the record is any evidence showing that

CMP has suffered any loss caused by the failure to obtain permits
for river sand.

There is simply no proof that any fines or

penalties have been imposed, or that any costs have been incurred
by CMP in connection with the absence of permits for river sand.
Indeed, “CMP agrees that there is no proof that any compensatory
mitigation, fines penalties or other associated costs have been
incurred by CMP relating to any permitting issues, because there

defendants’ evidence by his sworn statements. For example, Carrere
denied in one of his affidavits that he had put sand down on the
property prior to Quarry, but the defendants submitted an email
from art director William Budge in which Budge says that the access
road is not drivable, that it has “become mud due to all the rain”
and that “Tac [Carrere] is suggesting laying sand down, which he
says they did along the road around where we were discussed [sic]
putting the barracks. It pulls the water up and dries it.... His
estimate is $4,769 to lay 80 yrds of river sand down.”
16

has

yet

to

be

determination.”

an

administrative

proceeding...to

make

such

a

Summary judgment in the defendants’ favor is

proper where, as here, CMP has failed to establish damages, an
essential element of its case.

Accordingly, the defendants are

entitled to judgment as a matter of law dismissing CMP’s breach of
contract claim for the failure to obtain permits for river sand.
B.

CMP’s Breach of Contract Claim for Failure to Pay Site
Representative Fee

The

plaintiff

alleges

that

RSP

breached

the

Location

Agreement by paying this $100/day fee for only nine days, instead
of for the full term of the Location Agreement. The defendants
seek summary judgment dismissing this breach of contract claim on
the ground that the plaintiff has failed to submit precise evidence
of breach.
The Court addressed this very issue in February when it was
presented with cross motions for partial summary judgment:
CMP also claims that it has established beyond a
triable issue of fact that the defendants owe 41 days’
worth of Site Representative Fees pursuant to the
Location Agreement.
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 attempt to
extract Site Representative Fees for each day they
17

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. 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.

See Order and Reasons dtd. 2/8/17.

Beyond more tit for tat,

nothing has altered the summary judgment record.

In his most

recent affidavit, Carrere suggests “I was present practically
every day during the entire term of the Location Agreement on site
to open and close the property and to act as liaison between CMP
and RSP.”

And, defendants offer nothing to refute this admittedly

self-serving

and

unhelpful

statement.

Indeed,

the

defendants

concede that Carrere was frequently on site: RSP’s Mickey Lambert,
equally unhelpful, stated that Carrere was “frequently present”
during the term.

The record does not suggest, beyond dispute,
18

that CMP is not entitled to the site representative fee for which
it contracted.

It suggests the opposite: CMP is entitled to

additional site representative fees.
Insofar as RSP submits that Carrere’s self-serving sworn
statement

is

“incompetent”

summary

judgment

evidence,

RSP

is

incorrect. An affidavit based on personal knowledge and containing
factual assertions suffices to create a fact issue, even if the
affidavit is self-serving.

See Dallas/Forth Worth Int’l Airport

Bd. v. INet Airport Sys., Inc., 819 F.3d 245, 253 n.14 (5th Cir.
2016)(citation omitted); see also Rushing v. Kan. City S. Ry., 185
F.3d 496, 513 (5th Cir. 1999)(“[M]erely claiming that the evidence
is self-serving does not mean we cannot consider it or that it is
insufficient.

Much evidence is self-serving and, to an extent,

conclusional.”), superseded on other grounds by Fed. R. Evid.
103(a).
What is undisputed:
9

days,

but

“practically

Carrere
every

RSP paid the site representative fee for
was

day”

on
and,

the

property

therefore,

representative fees for more than 9 days. 9

“frequently”
CMP

earned

or
site

Unfortunately, there

is no evidence in the record to establish the exact number of days

That the parties have not settled this claim, which is worth less
than $4,100, is emblematic of the vexatious character of this
litigation and the childish hostility. See 28 U.S.C. § 1927.
19
9

Carrere assisted in opening or closing the property. 10
the

only

evidence

to

support

entitlement

to

Assuming

additional

site

representative fees is Carrere’s word, the Court is forbidden from
making credibility determinations on this, a paper, record.

At

the upcoming bench trial, on the other hand, this Court will be
the factfinder and will carefully scrutinize the testimony on this
issue

in

probing

whether

CMP

preponderance of the evidence.
C.

has

proved

this

claim

by

a

Summary judgment is not proper.

CMP’s Claim that RSP Attempted to Impose Unauthorized
Conditions on CMP

CMP also seeks judgment as a matter of law dismissing the
plaintiff’s “claim” that RSP attempted to impose “unauthorized and
overreaching conditions on CMP” when it asked CMP to sign a release
in connection with paying the final invoice for cleanup.

Assuming

CMP ever advanced such nonsense in the form of a claim for relief
in his complaint, it has abandoned the claim by failing even to
respond to the defendants’ motion for summary judgment on this
issue.
summary

Insofar as the defendants in an abundance of caution seek
judgment

dismissing

such

claim,

entitlement to judgment as a matter of law.

they

have

shown

CMP offers no legal

The Court can’t exactly multiply $100 times “practically every
day.”
20
10

support to maintain such a claim for “attempt,” nor is there any
evidence that CMP was damaged as a result of being presented with
a written release to sign; a release CMP refused to sign.
D.

CMP’s Claim for Attorney’s Fees for Enforcing the
Location Agreement

CMP seeks reasonable attorney’s fees and expenses incurred in
its effort to enforce the Site Representative Fee provision as
well as the cleanup provision of the contract; the matter of
cleanup has been settled, but CMP suggests that it reserved its
right to seek attorney’s fees for enforcement of that provision.
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.” This Court
has already determined that 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.

However,

as

previously

observed, CMP may 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.
February,

determining

the

merits

21

of

CMP’s

As it was in
entitlement

to

attorney’s fees remains premature. 11

Of course, under the terms

of the Agreement, any recovery will be limited to “reasonable”
attorney’s fees and expenses.

Moreover, the plaintiff will not be

permitted to recover attorney’s fees and expenses that were paid
toward work performed to advance claims that have been dismissed
as a matter of law.

Furthermore, whatever the outcome at trial,

the Court will entertain papers from both sides considering whether
28 U.S.C. Section 1927 is implicated.

Any award under Section

1927 might well exceed the worth of the claims that have survived
a tortuous motion practice.
III.
Finally, the Court takes up yet another issue it is asked to
rehash:

whether CMP’s trespass claim fails as a matter of law.

The Louisiana Civil Code recognizes the tort of trespass under
article 2315.
Cir. 2009).

Richard v. Richard, 24 So. 3d 292, 296 (La. App. 3

"A trespass occurs when there is an unlawful physical

invasion of the property or possession of another."

Id.

There is

no trespass when the landowner gives consent to the presence.

CMP and RSP resolved CMP’s claim for payment of Barrier
Resources’ invoice to clean up CMP’s property on November 7, 2016,
but, CMP stresses, that settlement did not include, and CMP
retained its right to enforce, its claim for attorney’s fees and
expenses incurred as a result of having to enforce that obligation.
22
11

Beals v. Griswold, 468 So. 2d 641, 644 (La. App. 4 Cir. 1985).
“Damages are recoverable for ‘unconsented to activities performed
on the property of another, based on physical property damage,
invasion

of

suffering.”

privacy,

inconvenience,

and

mental

and

physical

Richard, 24 So. 3d at 296 (“The tort of trespass has

long been recognized by courts...as a means to correct the damage
caused when an owner is unjustly deprived of the use and enjoyment
of his immovable.”)(citations omitted).
The record establishes that CMP gave its consent to the
presence of RSP’s many props, sets, and other materials brought
onto the property consistent with the Location Agreement.

And,

the Court has already determined that CMP’s “attempt[] to contort
the defendants’ post-term conduct into an ongoing trespass...is
without merit.”

See Order and Reasons dtd. 2/8/17.

The parties

contemplated additional fees would be owed CMP if RSP “occupied”
the property beyond the term, but this Court found the property
was not “occupied” beyond the term.

See id.

The parties also

contemplated obligations for cleanup, returning the property as
received, and for “repair costs.”

That is, RSP was obliged to

“completely remove” its props and equipment “upon completion of
work.” Although RSP initially did not do so to CMP’s satisfaction,
the parties have since settled this claim for RSP’s alleged breach
for failure to cleanup and restore the property.
23

CMP was compensated for the use of its land and the Location
Agreement spelled out the parties’ obligations, including how to
resolve issues concerning leftover materials or property damage.
Moreover, RSP has paid for, and the parties have resolved, CMP’s
claims for “physical property damage” based on the cost to restore
the property, and that breach of contract claim has been dismissed
with prejudice.

See Order dtd. 11/21/16 (granting the plaintiff’s

motion to dismiss released claim).

This Court has also rejected

CMP’s “attempt[] to contort the defendants’ post-term conduct into
an ongoing trespass and the Overage Fee provision as a stipulated
damage clause triggered by that trespass[,]” finding that this
provision “simply guaranteed CMP daily overage for each additional
day RSP...failed to finish what they came to do: use the land to
film a television series.”

See Order and Reasons dtd. 2/8/17.

Nevertheless, CMP continues to pursue a tort theory of recovery,
for continuing trespass, now suggesting that “processed soil and
river

sand...remains

on

CMP’s

property

to

this

day.”

CMP

complains, again, not that it did not consent to sand being brought
on the property (indeed, CMP’s sibling company, Barrier Resources,
was the source of most, if not all, of the sand), but, instead,
argues

that

bringing

sand

on

the

property

without

permits

constitutes trespass...that CMP would not have consented to the
sand being deposited had it known no permits were obtained in
24

advance.

Whether CMP is attempting to impose tort liability for

a breach of contract claim that has been resolved, 12 or whether CMP
is attempting to recast in negligence terms its claim for breach
of contract for failure to secure permits, both attempts are
frivolous failures.
Yet again, CMP offers no support for its continuing trespass
theory.

See Order and Reasons dtd. 2/8/17.

Even if it had any

support in law for its argument (that, without proper permits the
presence of sand is unlawful under a trespass theory of recovery),
any such trespass-by-sand-claim meets the same fate of dismissal
as the breach of contract claim: on this record, no damages support
CMP.

Carrere’s sworn statement merely lists how CMP was allegedly

damaged by RSP’s alleged trespass, in the abstract:
CMP has suffered damages as a result of its trespass
claim, including but not limited to, damages for the
physical property damage caused by RSP’s activities, for
the invasion of CMP’s privacy by RSP’s abandonment of
its refuse, props and temporary sets on CMP’s Property,
for the deprivation of CMP’s use and enjoyment of its
property, and the inability to utilize the property for
other commercial purposes. 13

To be sure, the Court is troubled by the fact that the parties
have settled CMP’s claim for breach of contract in regards to
cleanup and, yet, CMP appears to seek recovery in tort for the
exact same conduct.
13 In
its opposition papers, counsel for CMP equivocates as to
whether this trespass claim seeks to recover for only the presence
of the river sand, or also for the “rubbish and property” that
counsel admits were removed from plaintiff’s property pursuant to
25
12

Carrere’s conclusions regarding CMP’s alleged damages find no
support in the summary judgment record. Unlike when Carrere states
that he was on the premises practically every day, in support of
CMP’s claim for site representative fees -- a statement suggesting
a fact about which he has personal knowledge -- Carrere’s statement
listing damages for trespass are not facts based on personal
knowledge.

Carrere

merely

announces

sweeping

categories

of

damages that may be recovered if one prevails on a cause of action
for trespass.

Failing to offer any facts supporting the essential

the parties’ settlement. That this latest Carrere affidavit is
dated March 14, 2017 (several months after the parties settled the
cleanup claim and CMP released defendants from their obligation to
cleanup and refurbish CMP’s property consistent with paragraph 7
of the Location Agreement) and continues to mention “RSP’s
abandonment of its refuse, props and temporary sets” suggests that
the plaintiff’s trespass claim goes beyond the river sand and also
seeks to recover damages for a claim that has been settled.
Counsel’s penchant to slay the slain suggests ignorance of what
has become required reading in these proceedings:
Any attorney or other person admitted to conduct cases
in any court of the United States or any Territory
thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses,
and attorneys’ fees reasonably incurred because of such
conduct.
28 U.S.C. § 1927.
26

damages element of the plaintiff’s trespass claim entitles the
defendants to judgment as a matter of law dismissing the claim.
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the defendants’ motion for summary judgment is GRANTED in part
(insofar as the defendants are entitled to judgment as a matter of
law dismissing the plaintiff’s claims for breach of contract for
failure to secure permits, breach of contract for attempt to impose
unauthorized condition, and trespass) and DENIED in part (insofar
as the plaintiff’s claim for breach of site representative fee
provision and its claim for contractual attorney’s fees remain for
trial).
New Orleans, Louisiana, April 5, 2017

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

27