Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

INDUSTRY ICON CLEANING

AND RESTORATION, INC. CIVIL ACTION

VERSUS NO. 23-3056

FAIRWAY VILLAGE

CONDOMINIUMS, INC. SECTION: “H”

ORDER AND REASONS

Before the Court is Defendant Fairway Village Condominiums, Inc.’s

Motion for Summary Judgment (Doc. 47). For the following reasons,

Defendant’s Motion for Summary Judgment is DENIED.

BACKGROUND

This diversity case arises out of the breach of an alleged contract

between Plaintiff Industry Icon Cleaning and Restoration (“Industry Icon”)

and Defendant Fairway Village Condominiums, Inc. (“Fairway”). Fairway is a

condominium association that governs a condominium complex damaged

during Hurricane Ida on August 29, 2021. Industry Icon alleges that it entered

into a contract with Fairway in October 2021 wherein it agreed to provide

cleaning and water remediation services for condominiums damaged by

flooding or water intrusion as a result of the storm.1

Around the time of the alleged agreement, Fairway paid Industry Icon

$25,000.00.2 Fairway also executed a “Direct Payment Authorization” that

authorized Fairway’s insurer to directly pay Industry Icon insurance proceeds

for “any services rendered or to be rendered” by Industry Icon that were

covered by Fairway’s insurance policy.3 The Direct Payment Authorization also

states that Fairway agreed to be responsible for any of Industry Icon’s services

that were not covered by its insurer.4 The Direct Payment Authorization was

the only document executed in relation to this dispute.

Industry Icon further asserts that Fairway’s insurer ultimately denied

coverage for its services based on the fact that Industry Icon “was not

authorized and not licensed to remediate mold damage” in Louisiana.5

Industry Icon alleges that Fairway’s insurer filed a complaint with the

Louisiana State Licensing Board, but the Board declined to bring charges after

conducting an investigation.6 Despite the complaint and the insurer’s non-

payment, Industry Icon completed its work on the complex. Industry Icon

turned to Fairway to collect the balance for the services it had rendered, and

later brought this suit to recover the remaining $782,326.84 of the $807,326.84

invoiced.

1 Doc. 6 at 2.

2 Doc. 6 at 3; see Doc. 50-5.

3 Doc. 47-3.

4 Id.

5 Doc. 6 at 3.

6 Id. at 4; see Doc. 50-3.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with 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.”7 A genuine issue of

fact exists only “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.”8

In determining whether the movant is entitled to summary judgment,

the Court views facts in the light most favorable to the non-movant and draws

all reasonable inferences in his favor.9 “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.”10 Summary judgment is

appropriate if the non-movant “fails to make a showing sufficient to establish

the existence of an element essential to that party’s case.”11 “In response to a

properly supported motion for summary judgment, the non-movant must

identify specific evidence in the record and articulate the manner in which that

evidence supports that party’s claim, and such evidence must be sufficient to

sustain a finding in favor of the non-movant on all issues as to which the non-

movant would bear the burden of proof at trial.”12 “We do not . . . in the absence

of any proof, assume that the nonmoving party could or would prove the

7 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).

8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

9 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).

10 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

11 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

12 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.

2004) (internal citations omitted).

necessary facts.”13 Additionally, “[t]he mere argued existence of a factual

dispute will not defeat an otherwise properly supported motion.”14

LAW AND ANALYSIS

Fairway asks this Court to grant summary judgment on Industry Icon’s

breach of contract claim. Fairway contends that Industry Icon’s claim fails

because no written agreement that contains the essential terms for a valid

services contract was perfected between the parties and any purported contract

is an absolute nullity. Industry Icon opposes, arguing that the parties entered

into a valid and enforceable contract.

A claim for breach of contract requires “(1) the obligor’s undertaking an

obligation to perform, (2) the obligor failed to perform the obligation (the

breach), and (3) the failure to perform resulted in damages to the obligee.”15

“Put differently, the elements of a breach of contract are the existence of an

agreement, a breach of that agreement, and damages resulting from that

breach.”16 Here, the parties dispute whether a valid contract ever existed.

I. Agreement to Essential Terms

Fairway asserts that the only written document executed between the

parties, the Direct Payment Authorization, lacks essential terms in that it fails

to identify the price of Industry Icon’s services or define the scope of work.

According to Fairway, because Direct Payment Authorization “is what

Industry Icon’s entire breach of contract claim rests upon,” and “no document

contains those essential terms,” Industry Icon cannot establish the existence

13 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

14 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

15 Favrot v. Favrot, 68 So. 3d 1099, 1108–09 (La. Ct. App. 4 Cir. 2011) (citing 1436 Jackson

Joint Venture v. World Constr. Co., Inc., 499 So. 2d 426, 427 (La. Ct. App. 4 Cir. 1986)).

16 CCAPS, LLC v. HD and Assocs., LLC, No. 21-2195, 2023 WL 1965087, at *4 (E.D. La. Feb.

13, 2023).

of a contract obligating Fairway to pay for Industry Icon’s services. Plaintiff

admits that the Direct Payment Authorization is the only written document

between the parties, but counters that oral and tacit agreements form the basis

of its breach of contract claim rather than the Direct Payment Authorization.

To be sure, Fairway is correct that “[t]he Direct Payment Authorization

is a payment authorization, not a services contract,” and thus the document

does not detail the entirety of the obligations Industry Icon alleges were

breached.17 Fairway, however, makes no argument as to why a written

agreement would be required under these circumstances, and the record

evidence it submits demonstrates a genuine issue of fact as to whether a valid

agreement between the parties exists.18 Specifically, Steven Louque, Fairway’s

president at the time the alleged contract was executed, stated in his

deposition that the parties “did go into [a] contractual agreement to have

[Industry Icon] do the work” that forms the basis of Industry Icon’s claims.19

The fact that the Direct Payment Authorization is insufficient and that there

are no other written agreements does not foreclose Plaintiff’s breach of contract

claim where Louisiana law permits oral and implied contracts.20

17 Doc. 51 at 3; see Doc. 47-4 at 71–72 (“[The Direct Payment Authorization] says that we

hired – we were going to hire Industry Icon, and by doing so, we would be not responsible

for the payment unless the insurance company didn’t pay them. That’s what this

agreement was that – to protect them if the insurance don’t completely pay, we got to come

up and foot the bill for the rest. That’s what this is for.”).

18 Fairway’s Statement of Undisputed Material Facts merely asserts that “[n]o written

contract exists between Industry Icon and Fairway.” Doc. 47-2 at 2 (emphasis added).

19 Doc. 47-4 at 34–35.

20 “A contract is formed by the consent of the parties established through offer and acceptance.

Unless the law prescribes a certain formality or the intended contract, offer and acceptance

may be made orally, in writing, or by action or inaction that under the circumstances is

clearly indicative of consent.” LA. CIV. CODE art. 1927. The Court notes that Industry Icon’s

Complaint makes no mention of the Direct Payment Authorization and does not specify the

type of contract that forms the basis of this suit.

Even assuming that Fairway’s Motion intends to imply that there was

no agreement, oral or implied, as to the scope of work or price, Louque’s

deposition testimony rebuts that implication. Louque states that Fairway

“brought [Industry Icon] in to do mitigation and cleaning work with a public

adjuster to be able to benefit [Fairway] as much as possible.”21 Based on

Louque’s deposition testimony, Fairway had a separate contract with Ron

Adam, a public adjuster, to “provide a scope of work,” and Fairway’s insurance

company would make payments based on that scope of work.22 Therefore, the

deposition testimony Defendant offers in support of its Motion reflects that

there may have been some agreement as to the essential terms of a valid

contract. Accordingly, Fairway has failed to meet its initial burden to show the

absence of a genuine issue of material fact regarding the existence of

agreement as to the purported contract’s material terms.23

II. Nullity

Turning to Fairway’s nullity argument, Fairway avers that even if the

parties formed an agreement, Industry Icon’s failure to hold a Louisiana

contractor’s license renders the contract unenforceable and defeats its claim as

a matter of law. “[O]nly a person who has obtained a contractor’s license from

21 Doc. 47-4 at 90. Louque qualifies this statement by clarifying that Fairway never received

a written scope of work. Id.

22 Doc. 47-4 at 82. In Louisiana, a “public adjuster” is “any person who, for any compensation,

direct or indirect, engages in public adjusting,” which is defined in pertinent part as

“[i]nvestigating, appraising, or evaluating and reporting to an insured in relation to a first-

party claim for which coverage is provided by an insurance contract that insures the

property of the insured.” LA. REV. STAT. § 22:1692(7)–(8)(a).

23 See Isquith ex rel. Isquith v. Middle South Utils., Inc. 847 F.2d 186, 198–99 (5th Cir. 1988)

(“[A]s Celotex recognizes, Rule 56 permits a movant to discharge [its] initial burden by

‘pointing out to the district court’ that the record contains no evidence of an essential

element of the nonmovant’s case. Just because a movant makes that claim, however, does

not mean that the claim is true. And if it is not—if the movant wrongly characterized the

information in the record—the movant has not shown the absence of a genuine issue which

would entitle it to summary judgment.”) (internal citations omitted).

the State Licensing Board for Contractors may be engaged in the contracting

vocation in the State of Louisiana.”24 Thus, “[u]nder Louisiana law, a

contracting agreement entered into without the benefit of a contractor’s license

is null and void.”25 Industry Icon does not dispute that it held no Louisiana

contractor’s license but asserts that its water mitigation services do not fall

into the class of services for which Louisiana law requires a license. The Court

is ill equipped to reach the issue here. To determine whether Industry Icon

required a contractor’s license, the Court must determine whether Industry

Icon “acted under the Agreement as a contractor.”26 For the purposes of this

dispute, “contractor” is defined as:

[A]ny person who undertakes to, attempts to, or submits a price or

bid or offers to construct, supervise, superintend, oversee, direct,

or in any manner assume charge of the construction, alteration,

repair, improvement, movement, demolition, putting up, tearing

down, or furnishing labor, or furnishing labor together with

material or equipment, or installing the same for any building,

highway, road, railroad, sewer, grading, excavation, pipeline,

public utility structure, project development, housing, or housing

development, improvement, or any other construction undertaking

for which the entire cost is fifty thousand dollars or more when the

property is to be used for commercial purposes.27

24 Hagberg v. John Bailey Contractor, 435 So. 2d 580, 584 (La. Ct. App. 3 Cir. 1983); LA. REV.

STAT. § 37:2163(A)(1) ((“It shall be unlawful for any person to engage or to continue in this

state in the business of contracting, or to act as a contractor as defined in this Chapter,

unless he holds an active license as a contractor in accordance with the provisions of this

Chapter.”). The purpose of these provisions is to protect the State’s citizens by ensuring

that those acting as contractors are qualified to do so. TradeWinds Env’t Restoration, Inc.

v. Stewart, No. 06-3299, 2008 WL 236891, at *3 (E.D. La. Jan. 28, 2008), aff'd sub nom.

Trade-Winds Env’t Restoration, Inc. v. Stewart Dev. Liab. Co., 409 F. App’x 805 (5th Cir.

2011).

25 Tradewinds Env’t Restoration, Inc., 2007 WL 1191896, at *3. Additionally, a contract that

is absolutely null may not be confirmed or otherwise ratified. LA. CIVIL CODE art. 2030.

26 CCAPS, 2023 WL 1965087, at *10.

27 LA. REV. STAT. § 37:2150.1(4)(a) (2019).

The Court must, therefore, analyze whether the services contemplated by the

parties’ alleged agreement fell into the categories of services defined above.

Fairway’s Statement of Undisputed Material Facts does not address the

scope of work contemplated by any alleged agreement or the nature of services

rendered.28 Likewise, in its Motion, Fairway does not assert that there is no

genuine issue of material fact as to the scope of work. However, Fairway’s

Motion does allege that Industry Icon’s demand for payment encompasses

“work to fully gut nearly all of the units, removing drywall, cabinetry, ceramic

tile, bathroom fixtures, etc.”29 While this allegation may speak to the work

Industry Icon ultimately performed, the Court cannot ascertain whether that

work was completed pursuant to the alleged agreement. Further, Fairway’s

Motion and Louque’s deposition testimony indicates that, assuming there was

any agreement as to the scope of work, Industry Icon may have exceeded it by

completing work outside of the parties’ agreement.30 As discussed above, a

genuine issue of material fact exists regarding whether the parties reached an

agreement on the scope of work Industry Icon was required to perform.31

Where, as here, the Court cannot ascertain the scope of the parties’ intended

agreement based on the record, the Court cannot analyze whether the

28 Doc. 47-2.

29 Doc. 47-1 at 3.

30 See Doc. 47-4 at 44–45 (“Q. Did you find that the mitigation work they did in your units

benefitted your units? A. I would have to answer no. Because one of my units needed some

stuff gutted out. And, yes. But the unit number 2 had a bad fire place, and it caused a lot

of damage on the second floor. And they gutted the entire unit because of that. I thought

that was overkill. And then in unit 28, I had – only damage in 28 looked like from roof leak.

But I did – nothing caved in in my unit. But they completely gutted it out, tore the whole

thing out based on some readings they had taken. . . . The company came in and tore out a

bunch of stuff that didn’t need to be torn out. Could have been – could have been not gutted

out as harshly as it was done, because some of the damage that was visible needed to be

remediated. . . . I think they took advantage of us in that first respect.”).

31 The fact that Industry Icon did not hold a Louisiana contractor’s license logically has no

bearing on the validity of an agreement where the parties reached no agreement at all.

contracted services fell within the ambit of those requiring a contractor’s

license under Louisiana law.*2

CONCLUSION

For the foregoing reasons, the Motion is DENIED.

New Orleans, Louisiana this 8th day of July, 2026.

ww,

gy TRICHE MILAZZO

UNITED STATES DISTRICT JUDGE

32 See InPwr Inc. v. Olson Restoration LLC, No. 2:21-CV-00821, 2022 WL 16845153, at *5

(W.D. La. Nov. 9, 2022) (““Accordingly, the Court finds that a genuine issue of material fact

as to the scope of the work performed exists. Specifically, a genuine issue as to whether the

work performed by ESP and ServPro required a valid contractor’s license exists.”). While

the Court recognizes this issue has been resolved under other circumstances, the instant

case is distinguishable based on the oral or implied nature of the alleged contract and the

fact that the Court is unable to determine the scope of work based on the record. See

CCAPS, 2023 WL 1965087 at *6-10 (applying the statutory definition of “contractor” to the

scope of work as alleged by the plaintiff at the motion to dismiss stage); see also 24/7

Restoration Specialists, LLC v. Young, No. 22-1948, *1—4, (E.D. La. June 5, 2023) (applying

the statutory definition of “contractor” on summary judgment where there was a written

contract between the parties and no dispute as to the scope of work as contemplated by the

parties’ alleged agreement).