### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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

s ummary 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 1 5, 2 011 Lyle W . Cayce Clerk

Pur sua nt to 5th Cir. R. 47. 5, the Courthasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5th Cir. R. 47.5 .4. Case: 11-30332 Document: 00511696541 Page: 1 Date Filed: 12/15/2011No. 11-30332

home remaine d p artially submerged in standing water for approximately two weeks. I n 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 o f the State of Louisiana. The State of Louisiana, thr ough 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 th e R ob i n s ons’s request for additional compensation of $60,000 to repair th e load-bearing p i e r s and “floating slab” on the grounds of insufficient evidence. The Rob i n sons 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 d amage t o th e load-bearing piers and “floating slab” were due to natural subsidence o f the soil, and n o t b e cause 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, a g ain 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 H o m e p ro gram or defendant ICF. The OCD denied the appeal on the grounds that the damage was caus e d 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 Eas t e rn District of Louisiana, alleging violations of their equal protection rights, negligence, and br e a c h of

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contract. ICF mov e d t o dismiss all claims. The district court dismissed the equal protection claims, but allowed the negligence and breach of co ntr act claims to proceed. ICF then moved for summary judgment on the remaining claims, and the district court granted the m o tion. 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 th e s t ate 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 r emained 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. I f th e m oving party meets this initial burden, then the burden shif

t s 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 ( 5 th C ir. 2009) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). III. Breach of Contract Claims Th e Rob in s o n s bring their breach of contract claims under the “Road H o m e Contract” between the State of Louisiana, through the OCD, and the defendant, ICF. Plaintiffs allege that they have standing to b ring claims under this
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contract because they are an intended third-party b e n e f iciary 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

o f f u n d s to homeowners in Louisiana. While the district court did not sp e c if i cally address the standing issue, “[w]e have recognized that standing is

e s s ential to the exercise of jurisdiction and is a ‘threshold question

. . . [th at] 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 inclusio n 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

a p p r oved as required by law. No oral understanding or agreement not incorporated into the Contact is binding on a ny party.” This language in the Road Home Contract, lik e 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: ‘Thi s Agre e m ent co nt ains the entire understanding of the parties and shall be modified only by an instrument in writing signed on behalf of each party hereto

. ’ Th u s , these parties contractually limited themselves to a written contract

. ”)

. B ecause the Road Home Contract must be in writing, any stipul ati o n s 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, th e 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 standi n g a s third-party benefici aries, 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 th e d etermination of the claim. Because no genuine issue of fact exists to support a finding o f b r e a c h 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 Lo b by, I n c . , 477 U.S. 242, 248 (1986)). IV. Negligence Claims The district court d e t e r m ined that ICF was not negligent, but even if it
was, ICF’s negligence was not the cause-in-fact of the Robinsons’s injuries b e c ause 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 determinatio n o f the Road Home Appeals Office was made i n 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 pr oviding a “summarization of [their] appeal to the State of Louisiana.” The Robinsons provide no evidence to controvert ICF’s c o ntention 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. 201 0). V. Conclusion For the foregoing reasons, the judgment of the distri c t c o u rt is hereby AFFIRMED.

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