IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30332

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

December 15, 2011

Lyle W. Cayce

Clerk

 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.

Case: 11-30332 Document: 00511696541 Page: 1 Date Filed: 12/15/2011
No. 11-30332

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

2

Case: 11-30332 Document: 00511696541 Page: 2 Date Filed: 12/15/2011
No. 11-30332

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

3

Case: 11-30332 Document: 00511696541 Page: 3 Date Filed: 12/15/2011
No. 11-30332

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

4

Case: 11-30332 Document: 00511696541 Page: 4 Date Filed: 12/15/2011
No. 11-30332

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

5

Case: 11-30332 Document: 00511696541 Page: 5 Date Filed: 12/15/2011
No. 11-30332

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.

6

Case: 11-30332 Document: 00511696541 Page: 6 Date Filed: 12/15/2011