     Case: 11-30332     Document: 00511696541         Page: 1     Date Filed: 12/15/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        December 15, 2011

                                     No. 11-30332                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



BRADEN ROBINSON; MICHELLE ROBINSON,

                                                  Plaintiffs - Appellants,
v.

ICF EMERGENCY MANAGEMENT SERVICES, L.L.C.,

                                                  Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CV-4872


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Braden and Michelle Robinson (the “Robinsons”) appeal the grant of
summary judgment in favor of ICF Emergency Management Services (“ICF”).
We AFFIRM.
                                     I.   Background
        The Robinsons own a home in New Orleans, Louisiana which suffered
extensive flood damage during the aftermath of Hurricane Katrina when their


        *
         Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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home remained partially submerged in standing water for approximately two
weeks. In addition to water and mold damage to the sheetrock walls, the
property sustained structural damage to the load-bearing piers and the
“floating” basement slab. The Robinsons applied for funds to assist with the cost
of their repairs through the “Road Home” program, the entity responsible for
disbursing the multi-million dollar FEMA grant to eligible homeowners on
behalf of the State of Louisiana. The State of Louisiana, through the Office of
Community Development (“OCD”), hired defendant ICF to administer the Road
Home program on behalf of the State.
      The Robinsons were issued an award of $10,609 to assist with the cost of
the repairs to their home, however, the Road Home program denied the
Robinsons’s request for additional compensation of $60,000 to repair the
load-bearing piers and “floating slab” on the grounds of insufficient evidence.
The Robinsons appealed the decision to the Road Home Appeals Office and
submitted their insurer’s engineering report to substantiate their claims. The
Road Home Appeals Office denied the appeal on the grounds that the damage
to the load-bearing piers and “floating slab” were due to natural subsidence of
the soil, and not because of Hurricane Katrina. After denying the appeal, the
Road Home Appeals Office advised the Robinsons that if they wished to appeal
the decision further, they would have to submit an appeal to the OCD.
      In their appeal to the OCD, the Robinsons submitted a second engineering
report, again alleging that the damage to the load-bearing piers and “floating
slab” were caused by Hurricane Katrina. This second report was sent only to the
OCD, and not to the Road Home program or defendant ICF. The OCD denied
the appeal on the grounds that the damage was caused by natural subsidence
of the soil, and not by Hurricane Katrina. After the OCD denied the Robinsons’s
final appeal, the Robinsons filed suit in the Eastern District of Louisiana,
alleging violations of their equal protection rights, negligence, and breach of

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contract. ICF moved to dismiss all claims. The district court dismissed the
equal protection claims, but allowed the negligence and breach of contract claims
to proceed. ICF then moved for summary judgment on the remaining claims,
and the district court granted the motion. The district court determined that
ICF was not negligent, and that even if ICF was negligent, ICF’s negligence was
not the cause-in-fact of the Robinsons’s injuries because the state had final
authority to grant or deny the claim for repairs. The court further concluded
that because ICF was not negligent, no genuine issue of fact remained for the
breach of contract claims, as the claims were interrelated. We affirm.
                              II.     Standard of Review
      We review a district court’s grant of summary judgment de novo. Nickell
v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Summary
judgment is proper if the evidence shows that there is no genuine dispute as to
a material fact. Id. If the moving party meets this initial burden, then the
burden shifts to the nonmovant to set forth specific evidence to support the
claims; the nonmovant may not simply rest on the allegations in the complaint
or on “conclusory allegations,” “unsubstantiated assertions,” or a mere “scintilla
of evidence.” Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010) (internal
quotation marks and citation omitted). We view all facts and draw all inferences
in the light most favorable to the party opposing summary judgment. Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010). A genuine issue of material fact exists
when the evidence is such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
                       III.         Breach of Contract Claims
      The Robinsons bring their breach of contract claims under the “Road Home
Contract” between the State of Louisiana, through the OCD, and the defendant,
ICF. Plaintiffs allege that they have standing to bring claims under this

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contract because they are an intended third-party beneficiary under the
contract. No provision of the contract expressly states that the contract is for the
benefit of any third party, however, the Plaintiffs allege that they were an
intended third-party beneficiary because the contract is for the administration
of funds to homeowners in Louisiana.          While the district court did not
specifically address the standing issue, “[w]e have recognized that standing is
essential to the exercise of jurisdiction and is a ‘threshold question . . . [that]
determines the power of the court to entertain the suit.’” Coleman v. Champion
Int’l Corp./Champion Forest Prods., 992 F.2d 530, 532 (5th Cir. 1993) (quoting
Warth v. Seldin, 422 U.S. 490, 498 (1975)).
      Louisiana law allows for the inclusion of third-party beneficiaries to a
contract, commonly known as a “stipulation pour autrui.” Joseph v. Hosp. Serv.
Dist. No. 2 of Parish of St. Mary, 939 So.2d 1206, 1211 (La. 2006). However, as
the Louisiana Supreme Court has noted, “if the contract must be in writing, then
the stipulation pour autrui must be in writing.” Id. at 1215, n. 13. Section 10.0
of the Road Home Contract provides: “No amendment or variation of the terms
of this Contract shall be valid unless made in writing, signed by the parties and
approved as required by law.        No oral understanding or agreement not
incorporated into the Contact is binding on any party.” This language in the
Road Home Contract, like the contract in Joseph, requires all modifications to
be made in writing, and expressly prohibits provisions not reduced to writing.
See id. at 1215-16 (“The [Joseph] contract provides: ‘This Agreement contains the
entire understanding of the parties and shall be modified only by an instrument
in writing signed on behalf of each party hereto.’ Thus, these parties
contractually limited themselves to a written contract.”). Because the Road
Home Contract must be in writing, any stipulations pour autrui must be in
writing as well. Id. at 1215, n. 13. No written stipulations pour autrui exist in
the Road Home Contract, therefore, the Robinsons are not third-party

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beneficiaries under Louisiana law and do not have standing to assert claims for
breach of contract under the Road Home Contract.
      In the alternative, even if the Robinsons have standing as third-party
beneficiaries, summary judgment was proper as to their breach of contract
claims. The undisputed summary judgment evidence shows that ICF evaluated
the Robinsons’s claim in accordance with the policies and procedures outlined in
the Road Home Contract and ICF’s evaluation of the Robinsons’s claim was then
subject to review by the State of Louisiana, which reviewed the claim and had
final authority to make the determination of the claim. Because no genuine
issue of fact exists to support a finding of breach against ICF, summary
judgment was proper as to the breach of contract claims. Tamez v. Manthey, 589
F.3d 764, 769 (5th Cir. 2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
                            IV.   Negligence Claims
      The district court determined that ICF was not negligent, but even if it
was, ICF’s negligence was not the cause-in-fact of the Robinsons’s injuries
because the state had final authority to grant or deny their claim for repairs.
The Robinsons assert that ICF was somehow involved with the state appeal,
and/or influenced the decision of the OCD to deny the Robinsons’s state appeal.
However, the Robinsons present no evidence to support these allegations. After
the first level appeal through the Road Home Appeals Office, the Robinsons were
informed that if they wished to appeal further, they could file a state appeal with
the OCD. The correspondence between the Robinsons and the OCD is on state
letterhead. The final denial of the Robinsons’s second appeal stated that “[t]he
Office of Community Development agrees that the determination of the Road
Home Appeals Office was made in accordance with Louisiana Recovery
Authority and Louisiana Office of Community Development (OCD) governing
rules and policies.”       The Robinsons themselves, corresponding with

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representatives of the OCD, noted that they were providing a “summarization
of [their] appeal to the State of Louisiana.” The Robinsons provide no evidence
to controvert ICF’s contention that a separate state appeals process made the
final decision to deny the Robinsons claim. Because the Robinsons offer nothing
more than “conclusory allegations” and “unsubstantiated assertions,” summary
judgment was proper as to the Robinsons’s negligence claims. Duffie v. United
States, 600 F.3d 362, 371 (5th Cir. 2010).
                               V.    Conclusion
      For the foregoing reasons, the judgment of the district court is hereby
AFFIRMED.




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