Judgment rendered May 20, 2026. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 56,890-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
WILLIAM FREDERICK Plaintiffs-Appellants BENNETT, ET AL
versus
STATE FARM INSURANCE, ET Defendants-Appellees AL
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2023-3795
Honorable Frederick Douglass Jones, Judge
LAW OFFICE OF ANTHONY Counsel for Appellants, J. BRUSCATO (APLC) William Frederick By: Anthony J. Bruscato Bennet and Bennett Properties of North Louisiana, LLC
DAVENPORT, FILES & KELLY, LLP Counsel for Appellee, By: M. Shane Craighead State Farm Fire and Casualty Company
C. JOSEPH ROBERTS, III Counsel for Appellee, The City of West Monroe BURGLASS, TANKERSLEY Counsel for Appellees, GAUDIN AND PHAYER Sweet Olive Homes, By: Francine M. Giugno LLC and Rob White Realty, LLC
Before PITMAN, COX, and ROBINSON, JJ. COX, J.
This civil appeal arises from the Fourth Judicial District Court,
Ouachita Parish, Louisiana. William Bennett (“Bennett”), individually, and
on behalf of his limited liability company, Bennett Properties of North
Louisiana, LLC (collectively, “Appellants”), appeals the trial court’s ruling
granting summary judgment in favor of named defendant, State Farm
Insurance Company (“State Farm”), and the granting of exceptions of no
right of action filed by Sweet Olive Homes, LLC (“Sweet Olive”), its listing
agent, Rob White (“White”), and the City of West Monroe (“the City”).
On review, we reverse the trial court’s granting of the motion of
summary judgement; affirm the granting of exceptions of no right of action
as to Bennett in his individual capacity; and reverse the trial court’s granting
of exceptions of no right of action as to “Bennett Properties, LLC,” as the
original petition was amended to substitute the proper party, Bennett
Properties of North Louisiana, LLC, thereby rendering the exceptions moot.
FACTS & PROCEDURAL HISTORY
Sweet Olive listed property located on 1300 2nd Street North (“the
property”), in Monroe, Louisiana, with White as the named listing agent.
On December 1, 2022, Bennett purchased the property and was listed as the
sole owner in his individual capacity. On December 15, 2022, Bennett
purchased a home insurance policy from State Farm, wherein “Bennett
Properties, LLC” was listed as the named insured. On December 16, 2022,
Bennett transferred ownership of the property to Bennett Properties of North
Louisiana, LLC, in which Bennett is the sole member and manager.
Shortly after Bennett transferred ownership to Bennett Properties of
North Louisiana, LLC, a freeze warning was issued for the Monroe area, and the water pipes in the home burst. On December 28, 2022, Jarrett Wilson
(“Wilson”), an employee for the City of West Monroe (“the City”), was
assigned to check areas of the city where its computer system indicated there
had been a drop in pressure. When Wilson arrived at the property, he noted
that he could hear running water inside the property and understood this
meant the pipes had burst. Wilson noted that the water valve between the
water main and water meter was broken, so he had to repair it before
shutting off the water. Bennett filed a claim with State Farm; however, on
February 24, 2023, State Farm denied the claim, providing that no coverage
would be afforded under Section 1 of the policy, entitled LOSSES NOT
INSURED. The provision provided, in pertinent part:
(1) We do not insure for loss to the property. . . directly and immediately caused by, one or more of the following: ... (b) freezing of a plumbing. . . system, or of a household appliance, or by discharge, leakage or overflow from within the system or appliance caused by freezing, while the dwelling is vacant, unoccupied or being constructed unless you have used reasonable care to: (1) maintain heat in the building; or (2) shut off the water supply and drain the system and appliances of water. . . (Emphasis added).
On August 29, 2023, Bennett, as managing partner, and on behalf of
named plaintiff “Bennett Properties, LLC,” filed a petition for damages
against State Farm, Sweet Olive, White, and the City. Bennett alleged that
when he purchased the property, Sweet Olive, through White, represented
that the property had not only been vacant for several months prior to his
purchase, but the property had also been winterized. He noted that several
placards were placed throughout the home with the following notice:
“STOP! THIS HOME HAS BEEN WINTERIZED! DO NOT COMPROMISE THE WINTERIZATION BY TURNING ON WATER TO THIS PROPERTY OR 2 RECONNECTING ELECTRICITY TO THE HOT WATER HEATER!
PLEASE DO NOT USE THE SINKS OR TOILETS. THE WATER HAS BEEN TURNED OFF TO PREVENT FREEZE DAMAGE. PLEASE REPORT ANY PROBLEMS TO THE ASSIGNED LISTING AGENT.
DATE OF WINTERIZATION: 09/22/2022 COMPANY NAME: SWEET OLIVE HOMES LLC”
Appellants argued that at no point did he or anyone who did work on the
home need to use the water, and no work done on the home required the use
of water.
Appellants further argued that water services had been turned off at
the property, and at no point during that time did he request to have water
services returned. Appellants asserted that he reasonably relied on the
warning placards, and the duty to ensure the pipes in the home were properly
winterized had been breached. As such, Appellants asserted that the damage
sustained should have been covered under the insurance policy, and each of
the named defendants was jointly liable for the damages sustained to the
property.
Following discovery and deposition of Bennett and White, State Farm
filed an exception of no right of action on May 15, 2025. State Farm alleged
that the named plaintiffs, Bennett and “Bennett Properties, LLC,” were
improper parties to this suit. Specifically, State Farm argued that “Bennett
Properties, LLC” was a different legal entity from Bennett Properties of
North Louisiana, LLC, and as such, neither Bennett nor “Bennett Properties,
LLC” owned the property and, thus, have no right of action to pursue
damages.
3 State Farm additionally filed a motion for summary judgment,
acknowledging that it provided coverage for the property and that Bennett
Properties of North Louisiana, LLC, was the proper party to this suit. State
Farm argued that Appellants’ claims against it be dismissed because the
policy provision specified that owners were to use reasonable care to either
provide heat or to ensure that the water in the home was shut off and drained
from appliances and pipes. In this case, State Farm argued that it was clear
there was no heat in the home; and because of the flood, it was also evident
that the water system to the home was pressurized or had not been properly
drained from the pipes. Therefore, the exclusion applied and coverage could
not be afforded.
On May 16, 2025, the City also filed an exception of no right of action
similarly alleging that neither Bennett nor “Bennett Properties, LLC” were
proper parties to the suit such that the action should be dismissed. Sweet
Olive and White jointly filed an exception of no right of action, presenting a
similar argument. In response, on May 29, 2025, Appellants filed a motion
to supplement and amend the original petition for damages to reflect that
Bennett Properties of North Louisiana, LLC, was the proper party to the suit
rather than “Bennett Properties, LLC.” Appellants’ motion was granted
without opposition.
On July 28, 2025, Appellants filed an opposition to State Farm’s
motion for summary judgment. Appellants argued that reasonable care was
exercised because Bennett relied on the placards Sweet Olive placed in the
home, which indicated that the home had been winterized. Appellants
attached copies of the utility records for the property, which showed there
had been no water usage at the property between August 2022 until 4 December 18, 2022. Appellants also attached depositions from Bennett and
White, as well as affidavits from Bennett and his father, Fred Emmett
Bennett in support of their position.
In response, State Farm filed a motion to strike the affidavits, arguing
that neither are experts and therefore, any information provided would be
merely speculation. Moreover, State Farm argued that Appellants should
not be excused from their duty of care under the policy simply because they
relied on placards placed in the home. State Farm contended that Appellants
had a duty to exercise reasonable care, which was not done in this case; and
therefore, its motion for summary judgment should be granted.
On August 8, 2025, the City filed an exception of no right of action,
asserting that Bennett in his individual capacity should be removed as a
party to the suit. On August 12, 2025, a hearing on the motion for summary
was held; at its conclusion, the trial court granted summary judgment in
favor of State Farm. Appellants filed a motion to reconsider for new trial
and an additional opposition in response to the City’s, Sweet Olive’s, and
White’s exceptions for no right of action arguing that Bennett was a proper
party because he was the acting agent of Bennett Properties of North
Louisiana, LLC, and therefore, maintained the right to assert its legal rights.
Moreover, Bennett Properties of North Louisiana, LLC, is not a new party to
the litigation and has always been the proper party to this suit.
On September 2, 2025, the trial court granted the City’s. Sweet
Olive’s, and White’s exceptions of no right of action. As it concerned the
City, the trial court provided, in pertinent part:
…[T]he named plaintiff, William Frederick Bennett, individually, and Bennett Properties, LLC through William Bennett as managing partner, have no right of action to seek 5 damages for the reason that neither plaintiff was a named owner of the damaged property at the time of the following; the court having reviewed the record including all pleadings and the evidentiary offering of the parties (and to include an amended petition of the Plaintiff substituting Bennett Properties of North Louisiana, LLC as the proper corporate owner of the property in place of Bennett Properties, LLC; considered the evidence submitted and heard the argument of counsel, and believing the City to be entitled to the relief sought in that neither of the originally named plaintiff had a right of action for damages to the property identified in this proceedings after December 16, 2022 and that the plaintiff has declined to remove Bennett individually, as a plaintiff. ... …[T]his ruling does not impact any rights of Bennett Properties of North Louisiana, LLC to prosecute the claims originally filed by the originally named plaintiffs, Bennett Properties of North Louisiana, LLC having been properly substituted as a party plaintiff. (Emphasis added).
As it concerned Sweet Olive and White, the trial court provided, in pertinent part:
…[T]he Court concludes that neither William Frederick Bennett nor Bennett Properties, LLC had any right nor has any right to bring the instant action. IT IS FURTHER ORDERED that Bennett Properties of North Louisiana, LLC is the proper party plaintiff to prosecute the claims in this matter.
This appeal followed.
DISCUSSION
Assignment of Error 1: Whether the trial court erred in granting the motion for summary judgment in favor of State Farm.
By its first assignment of error, Appellants argue that the trial court
erred in granting State Farm’s motion for summary judgment. Specifically,
Appellants argue that it was reasonable to rely on the placards placed
throughout the home as an accurate representation that the home had been
winterized, that is, that the water had been turned off and appliances drained.
Appellants maintain that the reliance on the placards was also reasonable
6 because the City’s water valves are locked, so that there was no way to look
at the meter box to determine if the water was turned off.
Appellants assert that simply turning the faucets on and off to
determine if the water is turned off would create a potential flooding hazard
when the water is turned back on; therefore, there is no independent way to
determine if the water was truly turned off.
A summary judgment is reviewed on appeal de novo, with the
appellate court using the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate, i.e., whether
there is any genuine issue of material fact and whether the movant is entitled
to judgment as a matter of law. Samaha v. Rau, 07-1726 (La. 2/26/08), 977
So. 2d 880; Logan v. Richland Par. Hosp., 56,127 (La. App. 2 Cir. 4/9/25),
408 So. 3d 1208, reh’g denied (5/15/25), writ denied, 25-00760 (La.
10/1/25), 417 So. 3d 570. A motion for summary judgment shall be granted
if the motion, memorandum and supporting documents show that there is no
genuine issue as to a material fact and that the mover is entitled to judgment
as a matter of law. La. C.C.P. art. 966(A)(3); Staten v. Glenwood Reg’l
Med. Ctr., 53,220 (La. App. 2 Cir. 1/29/20), 290 So. 3d 280, writ denied, 20-
00591 (La. 9/23/20), 301 So. 3d 1184.
The burden of proof on a summary judgment motion remains with the
mover. La. C.C.P. art. 966(D)(1). However, if the moving party will not
bear the burden of proof on the issue at trial and points out that there is an
absence of factual support for one or more elements essential to the adverse
party’s claim, action, or defense, then the nonmoving party must produce
factual support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial. Id.; Staten, supra. If the opponent of 7 the motion fails to do so, there is no genuine issue of material fact and
summary judgment should be granted. Staten, supra.
Upon our de novo review, we cannot say that State Farm has shown
that there are no genuine issues of material fact as to whether Bennett
exercised reasonable care in relying on the placards and is, therefore, entitled
to summary judgment as a matter of law. In this case, the insurance policy
provided in pertinent part:
(1) We do not insure for loss to the property. . . directly and immediately caused by, one or more of the following: ... (b) freezing of a plumbing. . . system, or of a household appliance, or by discharge, leakage or overflow from within the system or appliance caused by freezing, while the dwelling is vacant, unoccupied or being constructed unless you have used reasonable care to: (1) maintain heat in the building; or (2) shut off the water supply and drain the system and appliances of water. . . (Emphasis added).
The policy only provides that the policyholder must have used reasonable
care to either maintain heat in the building or to shut off the water supply
and ensure that the systems and appliances are properly drained. The record
reflects that there was no heat in the home and that no water service was
available in the home as indicated by records from the City.
However, it was also established that several placards, placed by
Sweet Olive, were located throughout the property, which indicated that the
home had already been winterized and that the sinks were not to be turned
on. Moreover, State Farm failed to establish that reliance on a third party to
properly winterize or to have purported to have winterized property would
vitiate the policy. Given this, this Court finds that there still remains a
question of fact as to whether reliance on a third party for winterization of a
home would otherwise vitiate the policy for purposes of recovery. 8 In State Farm Fire & Cas. Co. v. Dean Flores Real Est., LLC, 20-
1087, (La. App. 1 Cir. 5/12/21), 326 So. 3d 292, State Farm’s insured
contracted with and relied on a third-party company to winterize his rental
property. Following a hard freeze, pipes in the insured’s home burst and
caused damage to the property. The insured filed a claim, and State Farm
subsequently paid for the property to be repaired and filed suit against the
third-party contractor who was hired to winterize the home. While the
merits of the case are not analogous to the present matter, the facts are
nevertheless constructive. In both cases, State Farm’s policyholders relied
on another person to winterize property; and after a hard freeze, pipes in
both properties burst and caused damage.
Given this, we cannot say that Bennett’s reliance on the placards
placed by a third-party relator was an issue that could be decided on a
motion for summary judgment. Accordingly, we find that the trial court
erred in granting the motion for summary judgment.
Assignment of Error 2: Whether the trial court erred in granting the exception of no right of action against William Fredrick Bennett.
By its second assignment of error, Appellants argue the trial court
erred in granting the exception of no right of action against Bennett.
Specifically, Appellants argue that Bennett was the acting agent for Bennett
Properties of North Louisiana, LLC. As agent, Bennett had a right of action
to assert any legal rights of the entity he represented under La. C.C. arts.
2989 and 694. Appellants assert that the original petition disclosed that
Bennett was the acting agent, i.e., managing partner, on behalf of Bennett
Properties of North Louisiana, LLC, and was therefore, entitled to enforce
this action. Appellants argue that the trial court’s judgment indicate the
9 court wanted to postpone arguments as to prescription and provided the
Appellees with arguments they can cite later in support of a prescription
argument.
Only a person having a real and actual interest to assert may bring an
action. La. C.C.P. art. 681; City of Shreveport v. CDM Smith Inc., 56,567
(La. App. 2 Cir. 11/19/25), 426 So. 3d 186. An exception of no right of
action is a peremptory exception, the function of which is to show that,
based upon the facts alleged and the evidence submitted, a plaintiff has no
legal right or interest in enforcing the matter asserted. La. C.C.P. art. 932;
City of Shreveport v. CDM Smith Inc., supra. It asks whether the plaintiff
belongs to the class of person to whom the law grants the cause of action
asserted. City of Shreveport v. CDM Smith Inc., supra.
The objection of no right of action tests whether this particular
plaintiff, as a matter of law, has an interest in the claim sued upon. The
exception does not raise the question of the plaintiff’s ability to prevail on
the merits nor the question of whether the defendant may have a valid
defense. Garrison v. James Const. Group, LLC, 14-0761 (La. App. 1 Cir.
5/6/15), 174 So. 3d 15, writ denied, 15-1112 (La. 9/18/15), 178 So. 3d 146.
The burden of proof of establishing the exception of no right of action
is on the exceptor. City of Shreveport v. CDM Smith Inc., supra. An
exception of no right of action presents questions of law requiring a de novo
review by the appellate court. Id.; La. C.C.P. art. 927.
A limited liability company (“LLC”) is an entity to which the law
attributes personality and is, therefore, a juridical person. See, La. R.S.
12:1301. Therefore, as a general proposition, the law considers an LLC and
the member(s) comprising the LLC, as being wholly separate persons. See 10 La. C.C. art. 24; Ogea v. Merritt, 13-1085 (La. 12/10/13), 130 So. 3d 888.
Moreover, La. R.S. 12:1320(C) provides:
A member, manager, employee, or agent of a limited liability company is not a proper party to a proceeding by or against a limited liability company, except when the object is to enforce such a person’s rights against or liability to the limited liability company.
The record in this case reflects that while Bennett initially purchased
the property in his own right, he later transferred full ownership to Bennett
Properties of North Louisiana, LLC, on December 16, 2022. Likewise,
Bennett Properties of North Louisiana, LLC, was the sole policy holder for
the home insurance policy from State Farm. At such point, Bennett no
longer had any individual rights to assert a claim for damages arising from
any water damage to the property. Therefore, the only proper party to this
suit was Bennett Properties of North Louisiana, LLC, which the trial court
recognized in its judgment. Accordingly, we find that the trial court did not
err in granting the exceptions no right of action as to Bennett in his
individual capacity; therefore, this assignment of error lacks merit.
Assignment of Error 3: Whether the trial court erred in granting the exception of no right of action against “Bennett Properties, LLC” should have been denied as moot.
By its last assignment of error, Appellants argue that the trial court
erred in granting the exceptions of no right of action against “Bennett
Properties, LLC.” Appellants acknowledge that the original petition listed
“Bennett Properties, LLC” as the plaintiff, which is an unrelated company
located in south Louisiana. Appellants argue that once the petition was then
amended to reflect that Bennett Properties of North Louisiana, LLC, was in
fact the true and proper party to this suit, then the exceptions filed by the
City, Sweet Olive, and White should have been rendered moot rather than 11 granted. Appellants argue that in doing so, the trial court inadvertently
provided Appellees with support for a later argument for prescription.
It is undisputed “Bennett Properties, LLC” was listed as the named
plaintiff in the original petition for damages. However, the petition was
amended on May 29, 2025, to reflect that Bennett Properties of North
Louisiana, LLC was the proper party to the suit rather than “Bennett
Properties, LLC.” The motion to amend was granted without opposition.
Once the motion was granted, the exceptions of no right of action, as
Appellants assert, were rendered moot. There was no need for the trial court
to either grant or deny the exception as to “Bennett Properties, LLC”
because the grounds on which the exceptions were filed were no longer at
controversy following the amendment of the petition.
Accordingly, the trial court erred in granting the exception following
the amendment of the petition to substitute the proper plaintiff, and the
matter should have reflected that the issue was rendered moot.
CONCLUSION
For the reasons set forth in this opinion, we reverse the trial court’s
granting of State Farm’s motion for summary judgment; affirm the granting
of the exceptions of no right of action as to Bennett in his individual
capacity; and reverse the trial court’s granting of exceptions of no right of
action as to “Bennett Properties, LLC,” noting that the matter should have
been rendered moot following the amendment of the original petition to
reflect that Bennett Properties of North Louisiana, LLC, was the proper
party plaintiff. Costs of this appeal are assessed equally between the parties.
REVERSE in part; AFFIRM in part.