Opinion
Civil Action No. 98-2095, Section "C"(4).
November 29, 2000.
ORDER AND REASONS
Before the Court is Plaintiff's Motion for Partial Summary Judgment (Rec. Doc. 121). The Court heard oral argument on this Motion on November 22, 2000, and took the matter under submission. For the following reasons, IT IS ORDERED Plaintiff's Motion is DENIED.
Background
On June 23, 1992, Plaintiffs, Virginia Rayne and Michael X. St. Martin, purchased property in Terrebone Parish, which is the subject of this litigation. This property is contiguous to the land upon which Plaintiffs maintain their personal residence, and connects their residence to the Mandalay National Wildlife. Specifically, the St. Martins allege that Southdown Sugars, Inc., Plaintiffs' predecessor in interest, granted United Gas Pipe Line Co., Koch's predecessor in interest, a right of way dated June 13, 1951, which provided United Gas (and now Koch) with the right to construct and operate a natural gas pipeline on Plaintiffs' property. The agreement stated that the right-of-way would be one hundred feet in width, and Koch was granted the right to dig a canal not to exceed forty feet in width.
Since 1951, the canal has grown from its original width of forty feet to its current width of approximately seventy feet. In this motion, Plaintiffs ask the Court to grant summary judgment on the issue of whether Defendant Koch has violated the terms of the agreement by allowing the canal to expand beyond forty feet. Although the parties do not dispute that the Koch canal is now approximately seventy feet wide, Defendant insists that it was and is under no obligation to maintain the canal at its original width of forty feet. Plaintiffs, on the other hand, assert that the Koch Canal is in violation of the 1951 right-of-way and easement, and seek to enforce the servitude.
Standard of Review
A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.See Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted).
Partial summary judgment dismissing only certain claims is appropriate under the same standards. See Fed.R.Civ.P. 56(d). See also Corporate Investigative Division, Inc. v. American Tel. Tel. Co., 884 F. Supp. 220, 223-24 (W.D. La. 1995) (using same standard of review for partial summary judgment on liability alone under 56(c)).
Analysis
The Court finds that Plaintiff makes a persuasive argument that the obligation to dredge a canal "not to exceed 40' in width" was a continuing obligation under the agreement. See Pembroke v. Gulf Oil Corp., 454 F.2d 606, 611 (5th Cir. 1972); Ryan v. Southern Natural Gas, 1987 WL 19044 (E.D. La.), rev'd on other grounds, 879 F.2d 162 (5th Cir. 1989); see also Lewis v. Sohio Petroleum Co., 528 So.2d 1084 (La.App. 3 Cir. 7/6/88), rev'd in part by 532 So.2d 754 (La. 1988) (reversing trial court's grant of summary judgment based on prescription). Nevertheless, even if this Court found that Defendant was required to maintain the canal at forty feet, there are still numerous unresolved questions surrounding the right of Plaintiffs to demand specific performance, i.e., restoration of the canal, making partial summary judgment inappropriate at this juncture.
In Weingarten, Inc. v. Northgate Mall, Inc., 404 So.2d 896 (La. 1981), the Louisiana Supreme Court held that specific performance is the "preferred remedy for a breach of contract." Id. at 896. However, the presumption in favor of specific performance may be withheld "when the . . . cost of performing is greatly disproportionate to the damages caused [and/or] the obligee has no real interest in receiving performance. . . ." Id. In addition, Louisiana Civil Code Article 1986 states that specific performance is the preferred remedy unless "impracticable." It further provides that "[u]pon a failure to perform an obligation that has another object, such as an obligation to do, the granting of specific performance is at the discretion of the court." See id. However, both of these issues — whether the cost of performing is greatly disproportionate to the damage caused and whether Plaintiffs are actually interested in specific performance — are in dispute. Furthermore, in the event that damages is the more appropriate remedy, the Court would have to resolve other issues that are still outstanding — namely whether those damages should be limited to the expansion of the width of the canal that has occurred only since Plaintiffs acquire the property in 1992.
Therefore, IT IS ORDERED THAT Plaintiffs' Motion for Partial Summary Judgment is DENIED.
Furthermore, in light of the foregoing analysis, IT IS ORDERED THAT Plaintiffs' Motion to Strike the Holloway affidavit contained in Defendant's Opposition to the Motion for Partial Summary Judgment (Rec. Doc. 140) is HEREBY DISMISSED AS MOOT.