Lafourche Realty Co.v.Entergy La., Inc.

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUITJul 10, 2019
2017 CA 0849 (La. Ct. App. Jul. 10, 2019)

2017 CA 0849

07-10-2019

LAFOURCHE REALTY COMPANY, INC. AND THE ALLAN COMPANY v. ENTERGY LOUISIANA, INC., ENTERGY LOUISIANA HOLDINGS, INC., ENTERGY SERVICES, INC., IRBY CONSTRUCTION COMPANY, IRBY CONSTRUCTION COMPANY OF MISSISSIPPI, HIGHLINES CONSTRUCTION COMPANY, INC., AND FROGCO, INC.

P. Albert Bienvenu New Orleans, Louisiana Attorney for Plaintiff/Appellant Allan Company-Golden Meadow, LLC Charlton B. Ogden, III And Sean D. Moore New Orleans, Louisiana Attorneys for Defendants/Appellees Entergy Louisiana, LLC, and Aegis Insurance Services, Ltd.


APPEALED FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF LAFOURCHE STATE OF LOUISIANA
DOCKET NUMBER 104457, DIVISION "A" HONORABLE JOHN E. LEBLANC, JUDGE P. Albert Bienvenu
New Orleans, Louisiana Attorney for Plaintiff/Appellant
Allan Company-Golden Meadow,
LLC Charlton B. Ogden, III
And
Sean D. Moore
New Orleans, Louisiana Attorneys for Defendants/Appellees
Entergy Louisiana, LLC, and
Aegis Insurance Services, Ltd. BEFORE: WHIPPLE, C.J., McDONALD, McCLENDON, WELCH, AND CHUTZ, JJ. DISPOSITION: APPEAL MAINTAINED; SEPTEMBER 5, 2014 JUDGMENT ON MOTION IN LIMINE RELATED TO COASTAL USE PERMITS AFFIRMED IN PART AND REVERSED IN PART; NOVEMBER 30, 2016 SUMMARY JUDGMENT REVERSED; AND REMANDED. CHUTZ, J.

This is an appeal from the granting of summary judgment in favor of Entergy Louisiana, LLC and Aegis Insurance Services, Ltd. (Entergy, collectively) and against Allan Company-Golden Meadow, LLC (Allan Company), dismissing Allan Company's claim for restoration damages. For the following reasons, we reverse the summary judgment and remand this matter to the district court.

During the course of the proceedings, "The Allan Company" transferred the property at issue and its interest in this suit to "Allan Company-Golden Meadow, LLC."

FACTS AND PROCEDURAL HISTORY

Allan Company is a family company that owns approximately 1,280 acres of marshland south of Golden Meadow, Louisiana. Louisiana Power & Light Company, the predecessor to Entergy, secured a right-of-way agreement in 1957 to construct, maintain and operate an electric transmission line in a 100-foot wide strip across six acres of the property. The transmission line was damaged by Hurricane Katrina. While using marsh buggies and other equipment to carry out emergency repairs in September 2005, Entergy damaged Allan Company's property inside of and adjacent to the right-of-way.

Entergy also has a 1957 right-of-way agreement with Lafourche Realty Company, Inc. (Lafourche Realty), which owns property adjacent to Allan Company's property. Lafourche Realty's property was likewise damaged while Entergy was performing repair work after Hurricane Katrina.

Lafourche Realty Company, Inc. and Allan Company filed suit based on the damage to their properties against various Entergy entities, as well as several other entities not involved in this appeal. By subsequent amending petitions, Allan Company members Elizabeth Culver Jahncke, Jeannie Culver Dragon, and John A. Culver were added as plaintiffs and additional defendants were named, including Entergy Louisiana, LLC and Aegis Insurance Services Inc., as the insurer for Entergy. The claims included tort, breach of servitude, breach of contract, and detrimental reliance. The portion of Allan Company's property that was damaged is valued at less than $5,000.00. The estimated cost of Allan Company's restoration plan exceeds $3 million.

Louisiana Power and Light was succeeded by Entergy Louisiana, Inc., which was succeeded by Entergy Louisiana Holding, Inc. Entergy Louisiana, LLC. is the successor in interest of Entergy Louisiana Holdings, Inc.

The claims for breach of contract were dismissed by the district court in a separate summary judgment. The appeal of that judgment was addressed in Lafourche Realty Company , Inc. v. Entergy Louisiana , Inc., 17-0850 (La. App. 1st Cir. 7/17/18), 255 So.3d 1086, 1090, writ denied, 18-1516 (La. 1/8/19), 259 So.3d 1021.

In response to various pretrial motions, the district court ruled that Allan Company's claim for restoration costs, whether based on servitude law or tort law, would follow the criteria set out in Roman Catholic Church of the Archdiocese of New Orleans v. Louisiana Gas Service Company , 618 So.2d 874, 879-880 (La. 1993). The district court signed a written judgment in accordance with that ruling on September 5, 2014. Subsequently, Entergy filed a motion for summary judgment seeking to dismiss Allan Company's claim for restoration damages under Roman Catholic Church. Following a hearing, the district court granted Entergy's motion for summary judgment and by judgment signed on November 30, 2016, dismissed Allan Company's claim for restoration damages. Allan Company now appeals.

In support of its motion for summary judgment, Entergy adopted "as if filed in extenso" a memorandum filed in support of a motion for summary judgment filed by co-defendants, Marsh Buggies, Inc., Frogco Rentals, LLC, and Frogco Amphibious Equipment, Inc. Subsequently, Allan Company's claims against these defendants were dismissed, with prejudice, on a joint motion for partial dismissal.

SHOW CAUSE

This court issued a rule to show cause order ex proprio motu on June 21, 2017, noting that the November 30, 2016 judgment appeared to be a partial judgment, as it did not dispose of all the claims and issues in the case and, moreover, did not contain the designation of finality required by La. C.C.P. art. 1915(B). This court gave the parties until July 21, 2017, to show cause why the appeal should not be dismissed. Lafourche Realty Company , Inc. v. Entergy Louisiana , Inc., 17-0849 (La. App. 1st Cir. 6/21/17) (unpublished).

Thereafter, the appellate record was supplemented with an order of the district court designating the judgment as final and appealable, with written reasons. The rule to show cause was referred to this appeal panel. Lafourche Realty Company , Inc. v. Entergy Louisiana , Inc., 17-0849 (La. App. 1st Cir. 10/27/17) (unpublished).

The district court's November 30, 2016 judgment states:

The only remaining defendants in this motion are Entergy Louisiana, LLC and Aegis Insurance Services, Ltd.

The Court, considering the evidence, memoranda and the law, renders the following Judgment. The Court finds that (1) the restoration damages are grossly disproportionate to the value of the damaged property; (2) The Allan Company has no personal reasons for repairing the damage; and (3) The Allan Company will not likely repair the property as contemplated by their restoration plan.

IT IS ORDERED[,] ADJUDGED AND DECREED that Entergy'[s] Motion for Summary Judgment is hereby granted, and any and all claims by Plaintiff, The Allan Company for "restoration damages" against the Defendants in this case are dismissed.


In designating the partial judgment as final and appealable under Article 1915(B), the district court determined that there was no just reason to delay the appeal. The district court further concluded that Allan Company's restoration claim was distinct from the remaining unadjudicated claims because the restoration claim did not involve the same issues. The district court believed there was little, if any, possibility that future developments would moot the need for the appellate court to review the instant partial summary judgment. Additionally, the district court found the possibility of the appellate court having to review the issues related to the restoration claim a second time was non-existent.

Because the district court gave explicit reasons for designating the judgment as final for appeal purposes, an abuse of discretion standard is applicable to the court's determination of finality. R.J. Messinger , Inc. v. Rosenblum , 04-1664 (La. 3/2/05), 894 So.2d 1113, 1123. After review of the designation of finality in light of the factors delineated in Messinger , we find no abuse of discretion in the district court's order. Thus, we maintain the appeal.

ASSIGNMENTS OF ERROR


1. The district court erred in applying the law on restoration damages under the Roman Catholic Church case.

2. The district court failed in finding no genuine issues of material fact existed, in improperly weighing the evidence, and in making factual findings and credibility determinations, including a finding on the issue of subjective intent to repair.

3. The district court erred in failing to consider as a legal basis for recovery of restoration damages Entergy's obligation as a servitude holder to make reasonable repairs under La. C.C. arts. 667, 743, and 745, which is not limited to diminished market value.

4. The district court erred in excluding from trial and failing to consider relevant evidence of Entergy's failure to comply with coastal use permit regulations and other laws and regulations relating to avoidance of damage to marsh, and mitigation, relating to the issue of reasonable use and restoration.



STANDARD OF REVIEW

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the district court's determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3); Schultz v. Guoth , 10-0343 (La. 1/19/11), 57 So.3d 1002, 1005-06.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966D(1).

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in light of the substantive law applicable to the case. Pumphrey v. Harris , 12-0405 (La. App. 1st Cir. 11/2/12), 111 So.3d 86, 89.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In assignments of error one and two, Allan Company asserts that the district court erred in applying the law on restoration damages set forth in Roman Catholic Church and in finding no genuine issue of material fact existed. Allan Company maintains the district court erred: in limiting the "personal reasons" contemplated by Roman Catholic Church to evidence of the "desires to enjoy and live in ... homes" as the sole criteria for recovery of restoration damages; in finding Allan Company lacked personal reasons based on the court's misinterpretation of the servitude as assigning all rights to Entergy when the servitude, in fact, reserved to Allan Company all uses not inconsistent with Entergy's use; and in not considering evidence and inferences from the evidence that showed Allan Company intended to restore the damaged marshland.

The value of the six acres of property physically damaged by Entergy, which is estimated to be less than $5,000.00, is clearly disproportionate to the more than $3 million in restoration damages claimed by Allan Company. The Supreme Court's holding in Roman Catholic Church , 618 So.2d at 879, precludes recovery of restoration damages in such cases "unless there is a reason personal to the owner for restoring the original condition or there is a reason to believe the plaintiff will, in fact, make the repairs." (Emphasis added.) The district court dismissed Allan Company's claim for restoration damages based on its conclusion that there was no evidence showing either that: (1) Allan Company had personal reasons, as contemplated by Roman Catholic Church , to restore the property or (2) Allan Company likely would make the repairs. Based on our de novo review of the evidence in support of and in opposition to the summary judgment, we disagree with the district court's conclusions.

In opposition to the motion for summary judgment, Allan Company presented the affidavit of John A. Culver, a member of Allan Company. Mr. Culver attested that the Allan Company property had been in his family for many decades, having originally been acquired by his grandfather, Allan T. Dusenbury, prior to 1957. In his affidavit, Mr. Culver stated that since his childhood, he has visited the property, usually with other family members, to inspect the property and meet with lease operators, as well as for them to engage in recreational activities such as hunting, fishing, shrimping, boating, and observing nature. He stated that the family made overnight visits to the property several times each year, staying at camps located on neighboring property for several days. Various members of the family also made day trips to the property, either in groups or individually.

According to Mr. Culver, Allan Company and its predecessors have engaged for many years in "managing all aspects of the property for preservation and environmental enhancement." At times, Allan Company has engaged professional consultants to further these purposes. Members have held meetings at nearby camps with environmental consultants, engineers, neighbors, and governmental agencies concerning preservation of the marshland, including Allan Company property and adjacent property. Mr. Culver further attested that Allan Company consented "to be included within the confines of the Lafourche Realty Company, Inc. marsh management project," which was initiated in 1983 and consists "of levees and water control structures that completely enclose" the Allan Company property. Finally, Mr. Culver stated that Allan Company has been a member of Restore or Retreat, a coastal preservation and restoration advocacy group, since it was created in 2000. Mr. Culver has served on the board of directors of Restore or Retreat for many years.

The district court concluded the evidence presented by Allan Company did not demonstrate the type of personal reasons for restoring the property contemplated by Roman Catholic Church. The district court stated that the type of reasons contemplated by Roman Catholic Church , i.e., "'desires to enjoy and live in ... homes,' were assigned away by Allan [Company] by its agreement to keep the tract clear of impediments to the right of way." The district court further stated that Allan Company had failed to take "any steps to develop, make improvements or demonstrate the kind of personal use of the subject tract" contemplated by Roman Catholic Church.

Additionally, the district court concluded that Allan Company members can still use the property for the same purposes for which they had always used it. Regardless, we note it appears that the damage seriously impaired Allan Company's longstanding efforts to preserve the marshland property. Moreover, there is an issue of material fact as to whether Allan Company members will be able to continue using the property for the same recreational purposes in the future. Expert evidence was presented indicating the damage to the six acres of property has enlarged since it occurred in 2005 and, unless repaired, will continue to expand to the surrounding Allan property due to the severity of the damage. One expert opined that "over time the damage will facilitate the break-up of the marsh."

Based on our de novo review, we find the district court erred. There is nothing in Roman Catholic Church limiting the personal reasons contemplated therein to an owner's desire to "enjoy and live in" his home. In Roman Catholic Church , the Supreme Court noted that the desire to live in one's home would "usually" be the personal reason why the owner wants to restore the property. The Supreme Court further observed, however, that "several courts have accepted 'special reasons' related to the non-homestead use of property." Roman Catholic Church , 618 So.2d 878-79. Thus, Roman Catholic Church does not require that an owner's personal reason for repairing the property be related to a homestead use. See St. Martin v. Mobil Exploration & Producing U.S. Inc., 224 F.3d 402, 410 (5th Cir. 2000).

Further, while the district court's reasons emphasized that there were no structures, buildings, improvements, or development on the Allan Company property, the evidence established that, given its remote location and marshland topography, development of the property was not feasible. The experts agreed the highest and best use of the property (excluding minerals) was for conservation and recreational uses (hunting, trapping, and fishing). Allan Company presented evidence that its members have used the property for a wide variety of such recreational purposes for decades. Additionally, members visited the property several times annually for multiple days at a time, staying at nearby camps, and enjoying the property as a family group. Given this evidence, together with Allan Company's longstanding conservation and preservation efforts, a genuine issue of material fact exists regarding whether Allan Company has sufficient personal reasons to justify restoring the property. This factual issue is one that should be decided at trial, rather than on a motion for summary judgment. Due to the existence of this issue of material fact, summary judgment was improperly granted.

Further, we find the district court also erred in finding that no genuine issue of material fact existed regarding whether Allan Company would likely repair the property. In concluding Allan Company was unlikely to restore the property, the district court observed there was no evidence that Allan Company had ever undertaken "previous repairs" on the property throughout its history of ownership. In support of its motion for summary judgment, Entergy presented evidence concerning two prior instances in which Allan Company property was damaged, but not repaired. The first instance occurred in 1996 when property in Section 26, the same section of property at issue in this case, was damaged by Entergy's use of marsh buggies near the servitude. Allan Company filed suit against Entergy, but later chose not to pursue the claim. However, no evidence was presented as to the severity or extent of the damage caused on that occasion.

The second instance involved a settlement Allan Company reached with Shell MARS regarding the expropriation of a pipeline servitude. Allan Company received $2.4 million in the settlement and agreed it would be responsible for the restoration of the property burdened with the servitude up to the amount of the settlement, after the water covering the pipeline was drawn down. In his deposition, Mr. Culver explained that the restoration work has not occurred because the water has not drawn down over the pipeline. In his affidavit, Mr. Culver further explained that Allan Company had no control over drawing down the water since the damaged area was located in a controlled area inside a hurricane protection levee. Additionally, he stated that Allan Company was advised by its consultants that it was not feasible to attempt restoration until the water covering the pipeline had been drawn down.

Based on these two prior instances, Entergy contends the district court correctly determined that Allan Company likely would not repair the property in this instance. We disagree. Mr. Culver provided a reasonable explanation as to why the damages caused by the Shell MARS pipeline had not been repaired. Moreover, we note that, unlike the current damage to the property, there was no evidence that the 1996 incident caused permanent damage to the property to an extent that potentially threatened Allan Company's preservation efforts.

From the evidence that Allan Company members have used the property for recreation and family getaways for many decades, an inference could be drawn that at least some members of Allan Company have deep emotional ties to the property that will motivate them to restore the property given the potential long-lasting effects of the current damage. A similar inference could also be drawn from Allan Company's longstanding conservation efforts and attempts to preserve the marshland property.

On a motion for summary judgment, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. Willis v. Medders , 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050 (per curiam). Moreover, the issue of whether Allan Company would perform the repairs goes to the intent of its members. Generally, subjective facts such as intent are inappropriate for determination on summary judgment. S.J. v. Lafayette Par. Sch. Bd., 06-2862 (La. 6/29/07), 959 So.2d 884, 887; Brignac v. Tower Credit , Inc., 11-1894 (La. App. 1st Cir. 9/21/12) (unpublished), writ not considered, 12-2636 (La. 1/25/13), 105 So.3d 61. Applying these principles to the evidence presented, we find a genuine issue of material fact existed as to whether Allan Company would likely repair the damaged property.

Finally, we point out that, even if Allan Company succeeds at trial in establishing it meets the criteria of Roman Catholic Church , it will not necessarily recover over $3 million in restoration costs. Entergy will have an opportunity at trial to challenge the scope of the damage incurred, as well as to present evidence of less costly restoration plans. If Allan Company prevails on its restoration claim, it will ultimately be for the factfinder to determine the appropriate cost and scope of the restoration plan. The U.S. Fifth Circuit's decision in St. Martin provides an example of a drastic reduction in a restoration plan proposed by the plaintiffs. In that case, the Fifth Circuit affirmed the district court's reduction of the plaintiffs' $14 million restoration claim to a total of $240,000. St. Martin , 224 F.3d at 411.

These assignments of error have merit.

In view of our holding that genuine issues of material fact remain regarding whether Allan Company can meet the criteria for recovery under Roman Catholic Church , we pretermit consideration of the issue of whether Roman Catholic Church governs the measure of damages in a servitude case (assignment of error number three). Until it is definitely determined that Allan Company does not meet the criteria of Roman Catholic Church , it is unnecessary to decide this issue.

ASSIGNMENT OF ERROR NUMBER FOUR

In this assignment of error, Allan Company complains the district court erred in excluding evidence of Entergy's failure to comply with coastal use permit regulations relating to the avoidance of damage to marshlands and the mitigation of damages. Allan Company contends this evidence was relevant to the issue of whether Entergy acted reasonably in exercising its servitude rights on Allan Company's property.

Prior to the hearing on the motion for summary judgment, Entergy filed a motion in limine to exclude all evidence relating to regulatory coastal use permits in connection with the repairs it made after Hurricane Katrina on Allan Company's property, as well as subsequent repairs it made unrelated to Hurricane Katrina on other properties. Entergy argued such evidence was not relevant and was solely an attempt to impugn its integrity. Entergy further argued the district court lacked jurisdiction to determine whether Entergy complied with the applicable regulations, which were subject to the regulatory authority of the Louisiana Department of Natural Resources (DNR). Following a hearing, the district court signed a written judgment on September 5, 2014, granting the motion in limine with respect to evidence regarding regulatory coastal use permits.

The September 5, 2014 judgment included rulings on several matters in addition to the ruling on the motion in limine related to evidence concerning regulatory coastal use permits. Other than the ruling on that particular motion in limine, the only portion of the judgment appealed by Allan Company was the ruling that the Roman Catholic Church case governed Entergy's obligation as a servitude holder to make reasonable repairs for damage caused by the use of its servitude on Allan Company's property. The latter ruling was the subject of assignment of error number three, which we pretermitted for the reasons previously stated (see n.6).

In excluding the evidence at issue, the district court concluded Entergy's compliance with coastal use permits and regulations was an administrative matter that should be determined in an entirely separate administrative proceeding. See La. R.S. 49:214.21 et seq. The district court's oral reasons suggest it may have also concluded the relevance of the evidence, if any, was outweighed by its prejudice because its purpose was "to make it look like [Entergy was] not doing something that they maybe should have done." Finally, the district court noted that some of the proposed evidence related to repairs made by Entergy several years after Hurricane Katrina "on other properties."

At trial, all relevant evidence is admissible, except as otherwise provided by the federal and state constitutions, the Louisiana Code of Evidence, or other legislation. Evidence is not admissible when it is not relevant. La. C.E. art. 402. Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or waste of time. La. C.E. art. 403. Under La. C.E. art. 401, "relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence. A ruling on the admissibility of evidence is a question of law and is not subject to the manifest error standard of review. Trascher v. Territo , 11-2093 (La. 5/8/12), 89 So. 357, 362.

Based on our review, we find the district court erred in granting Entergy's motion in limine in its entirety. The district court correctly excluded the coastal use permit evidence connected to subsequent repairs unrelated to Hurricane Katrina that were made by Entergy on other properties. Such evidence was not relevant to the issues presented in the instant matter. The district court erred, however, in excluding evidence regarding whether Entergy failed to comply with coastal use permit regulations in connection with its Katrina-related repairs to Allan Company's property. Contrary to Entergy's contentions, this evidence is relevant for a purpose other than impugning Entergy's integrity. The evidence is relevant to the issue of whether Entergy acted reasonably in exercising its servitude rights on Allan Company's property in avoiding damage to Allan Company's marshland property and in mitigating damages. Moreover, the probative value of the evidence is not substantially outweighed by its prejudicial effect. Accordingly, Entergy's motion in limine should have been denied with respect to coastal use permit evidence related to the post-Katrina repairs performed on Allan Company's property in September 2005.

There is no merit in Entergy's argument that the evidence should have been excluded because the district court lacks jurisdiction to determine whether Entergy complied with the applicable regulations concerning coastal use permits, which are subject to the regulatory authority of DNR. The purpose of the evidence is not to hold Entergy liable for regulatory violations, but to serve as evidence of whether Entergy acted reasonably to avoid damage to Allan Company's property and to mitigate damages, which are issues to be decided by the trier-of-fact in the present proceedings. --------

CONCLUSION

For the above reasons, the appeal is maintained and the November 30, 2016 judgment granting summary judgment in favor of Entergy Louisiana, LLC and Aegis Insurance Services, Ltd. and dismissing Allan-Company Golden Meadow, LLC's claim for restoration damages is reversed. Additionally, the September 5, 2014 judgment of the district court granting the motion in limine filed by Entergy Louisiana, LLC, and Aegis Insurance Services, Ltd. is reversed to the extent that it excluded evidence concerning regulatory coastal use permits related to the September 2005 repairs performed by Entergy on Allan Company's property following Hurricane Katrina. The September 5, 2014 judgment is affirmed to the extent that it excluded evidence concerning regulatory coastal use permits related to repairs performed by Entergy on other properties that was not related to the September 2005 repairs performed on Allan Company's property. This matter is remanded to the district court for further proceedings consistent with this opinion. All costs of this appeal are assessed against Entergy Louisiana, LLC, and Aegis Insurance Services, Ltd.

APPEAL MAINTAINED; SEPTEMBER 5, 2014 JUDGMENT ON MOTION IN LIMINE RELATED TO COASTAL USE PERMITS AFFIRMED IN PART AND REVERSED IN PART; NOVEMBER 30, 2016 SUMMARY JUDGMENT REVERSED; AND REMANDED. McDONALD, J. dissenting.

I respectfully dissent. After de novo review, I believe that the law on restoration damages as set forth in Roman Catholic Church of the Archdiocese of New Orleans v. Louisiana Gas Service, Co., 618 So.2d 874, 879-880 (La. 1993), applies to this case, and further, I find no genuine issue of material fact that Allen Company did not meet those criteria necessary to recover restoration damages.

In Roman Catholic Church the court stated:

[W]e conclude that, as a general rule of thumb, when a person sustains property damages due to the fault of another, he is entitled to recover damages including the cost of restoration that has been or may be reasonably incurred, or, at his election, the difference between the value of the property before and after the harm. If, however, the cost of restoring the property in its original condition is disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the owner for restoring the original condition or there is a reason to believe that the plaintiff will, in fact, make the repairs, damages are measured only by the difference between the property before and after the harm. Consequently, if a building such as a homestead is used for a purpose personal to the owner, the damages ordinarily include an amount for repairs, even though this might be greater than the entire value of the building.

. . . . .

In choosing between the cost of repair measure and some other measure of damages, it is important to know how the property is used and what interest in it is asserted, so that the measure can be adopted that will afford compensation for any legitimate use that the owner makes of his property. See D. Dobbs, [Handbook on the Law of Remedies, § 5.1 p. 315 (1973)].

Roman Catholic Church
, 618 So.2d at 879-80 (emphasis added).

Evidence filed in Allen Company's opposition to the motion for summary judgment shows that Mr. Culver feels deep emotional ties to the Allen Company property; however, members of the company are still able to use the property for the same purposes that it was used for before the damage, which includes staying at camps located on neighboring property, engaging in recreational hunting, fishing, boating, observing nature on their property, and engaging in mineral leasing of their property. Also, Allen Company has leased the property to the Plaisance family for trapping, fishing and hunting since 1983, and it continues to do so.

Under the high bar set in Roman Catholic Church I find no genuine issue of material fact that there were not reasons personal to Allen Company in this case, under these facts, sufficient to overcome the disproportionate cost of restoration of the property. Thus, I would not reach the issue of whether Allen Company actually intended to restore the property in this case.

For these reasons I would affirm the summary judgment rendered in favor of Entergy Louisiana and Aegis Insurance and dismissing Allen Company's claim for restoration damages, and I respectfully dissent from the majority opinion.