Red River Parish Port Commission v. Headwaters Resources Inc. (698 F. Supp. 2d 684, 2010)

MEMORANDUM RULING

TOM STAGG, District Judge.

This is a contract dispute between the Red River Parish Port Commission (the “Port Commission”) and Headwaters Resources, Inc. (“Headwaters”). Before the court is a motion for partial summary judgment filed by the Port Commission and a motion for summary judgment filed by Headwaters pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Record Documents 57 and 58. Based on the following, the Port Commission’s motion for partial summary judgment is GRANTED in part and DENIED in part, and Headwaters’s motion for summary judgment is DENIED.

I. BACKGROUND

The focus of this case is a Lease And Operating Agreement between Headwaters and the Port Commission. See Record Document 57, Ex. A-3. In the motions presently before the court, each party argues that the other party is in breach of this agreement. A brief summary of the circumstances leading to the construction of this document and the initiation of the present lawsuit are included below.

“Headwaters manages and transports coal combustion products, including fly ash.” Record Document 57 at 1. Fly ash is a by-product of the coal combustion process which is used as an additive to concrete to make it stronger, more durable and easier to work with. See id.

In 2001, Headwaters was presented with data which indicated that the market in Puerto Rico would require 250,000 to 400,-000 tons of fly ash per year. See id. Headwaters responded to this perceived opportunity by negotiating several agreements. See id. at 2. Headwaters contracted with CLECO to secure a supply of fly ash from the Dolet Hills Power Facility, and executed the agreement of present concern, the Lease And Operating Agreement, with the Port Commission to facilitate the shipment of fly ash on the Red River. Headwaters also secured a buyer in Puerto Rico, entering into a twenty-year fly ash supply agreement with the Puerto Rican company Ecológica Carmelo. See id.

Unfortunately, the fly ash business venture has failed to meet the expectations of Headwaters and the Port Commission. The demand for fly ash in the Puerto Rican market fell far short of the projections upon which Headwaters had relied. See Record Document 57, Statement of Undisputed Facts at 4. Instead of shipping/selling 250,000 to 400,000 tons of fly ash per year as originally projected, Headwaters has only shipped/sold, in total, 25,-449.62 short tons of fly ash through the Red River Parish Port since August of 2003. See Record Document 58, Statement of Material Facts at 1-3.

The Port Commission and Headwaters presently disagree whether or not certain actions taken by each party constitute breaches of the Lease And Operating Agreement. The parties seem chiefly concerned with the contractual provisions outlining requirements which, if met, entitle Headwaters to several million dollars in reimbursement funds from the Port Commission for costs incurred by Headwaters during the construction of a barge loading facility at the Red River Parish Port. In its motion for summary judgment, Headwaters contends that it has satisfied the requirements necessary to secure the multimillion dollar reimbursement from the Port Commission, that the Port Commission has breached the Lease And Operating Agreement by failing to tender this reimbursement and that the Port Commission’s claims of breach are invalid. In its motion for partial summary judgment, the Port Commission seeks both to identify a number of breaches on the part of Headwaters and defeat Headwaters’s claim for reimbursement for the barge loading facility, asserting that the text of paragraph three and Exhibit A-2 of the Lease And Operating Agreement describe the construction of a barge loading facility with six barge loading stations, while Headwaters has constructed a barge loading facility with only four barge loading stations.

II. LAW AND ANALYSIS

A. The Governing Legal Standards.

1. Summary Judgment Standards.

Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil Procedure “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying portions of the record which highlight the absence of genuine issues of material fact. See Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.2007). The nonmovant then must point to or produce specific facts demonstrating that there is a genuine issue of material fact. See id. All facts and inferenees are construed in the light most favorable to the nonmovant. See Puckett v. Rufenacht, Bromagen & Hertz, Inc., 903 F.2d 1014, 1016 (5th Cir.1990). A fact is “material” if proof of its existence or nonexistence would affect the outcome of the lawsuit under the law applicable to the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute about a material fact is “genuine” if the evidence is such that a reasonable fact finder could render a verdict for the non-moving party. See id. “If factual issues or conflicting inferences exist, the court is not to resolve them; rather, summary judgment must be denied.” Puckett, 903 F.2d at 1016.

2. Louisiana Contract Law.

The parties agree that Louisiana law governs the substantive legal questions in this case. In Louisiana, the interpretation of a contract is the determination of the common intent of the parties. See La. Civ.Code art. 2045. When the words of a contract are clear, explicit, and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. See La. Civ.Code art. 2046. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of feie parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. See La. Civ.Code art. 2053. Words used in a contract must be given their generally prevailing meaning. See La. Civ.Code art. 2047. Each provision of a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. See La. Civ.Code art. 2050.

“Whether an ambiguity exists in contractual language is a question of law for the court.” Avatar Exploration, Inc. v. Chevron, U.S.A, Inc., 933 F.2d 314, 320 (5th Cir.1991) (applying Louisiana law) (citation omitted). “A contract is ambiguous only if its terms are unclear or susceptible to more than one [reasonable] interpretation, or the intent of the parties cannot be ascertained from the language employed.” Gebreyesus v. F.C. Schaffer & Assoc., Inc., 204 F.3d 639, 643 (5th Cir.2000) (applying Louisiana law); see also TIG Ins. Co. v. Eagle Inc., 294 Fed.Appx. 920, 923-24 (5th Cir.2008) (applying Louisiana law and employing the ‘reasonable’ language included above). “Importantly, Louisiana law ‘does not allow the parties to create an ambiguity where none exists and does not authorize courts to create new contractual obligations where the language of the written document clearly expresses the intent of the parties.’ ” Shocklee v. Mass. Mut. Life Ins. Co., 369 F.3d 437, 440 (5th Cir.2004) (quoting Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316, 1326 (5th Cir.1994)).

B. Discussion.

1. The Port Commission’s Motion For Partial Summary Judgment.

In its motion for partial summary judgment, the Port Commission asserts that the following facts prove that Headwaters is in breach of the Lease And Operating Agreement: (a) Headwaters failed to ship an average of 30,000 tons of fly ash per year over a multiple two year period; (b) Headwaters shipped fly ash through the Natchitoches Parish Port after execution of the Lease And Operating Agreement; (c) Headwaters built a fly ash barge loading facility with only four stations instead of six; and (d) Headwaters allegedly failed to make timely rental payments after notice. The court will consider each of these alleged breaches in turn.

a. The First Alleged Breach.

The Port Commission argues that Headwaters breached paragraph twenty of the Lease And Operating Agreement, which states:

Lessor shall have the right and option to cancel this lease, if Lessee does not average shipping 30,000 tons per year over any two (2) year period.

Record Document 57, Ex. A-3 at ¶20. The term of the Lease And Operating Agreement was set for twenty years beginning on August 13, 2003. See id, Ex. A-3 at ¶ 1.

To bear its burden to demonstrate an absence of a genuine issue of material fact on this issue, the Port Commission cites a response by Headwaters to an interrogatory which establishes that during the term of the Lease And Operating Agreement, Headwaters handled only two shipments of fly ash through the Red River Parish Port. Headwaters shipped 11,434.97 short tons of fly ash on May 15, 2006, and 14,014.65 short tons of fly ash on February 10, 2007, through the Red River Parish Port. See Record Document 58, Ex. B at 9. Thus, only 25,449.62 short tons of fly ash have been shipped by Headwaters out of the Red River Parish Port since the execution of the Lease And Operating Agreement in 2003. The Port Commission also cites the transcript of a deposition in which a representative of Headwaters states that, to his knowledge, Headwaters does not have any current plans to make any additional shipments out of the Red River Parish Port. See Record Document 58, Ex. D at 142. The Port Commission then argues that these facts establish that Headwaters has not shipped an average of 30,000 tons of fly ash per year over any two year period, and thus Headwaters clearly breached paragraph twenty of the Lease And Operating Agreement.

In response, Headwaters does not contest the Port Commission’s assessment of the total tonnage of fly ash shipped through the Red River Parish Port. See Record Document 63 at 21. Instead, Headwaters asserts that the provision quoted above fails to impose any obligation upon it; thus Headwaters argues it cannot be found in breach of this provision. Headwaters explains that the language quoted above simply recognizes “the existence of a resolutory condition that may, if the Port Commission chooses, terminate the other obligations of the Agreement.” Id. Headwaters then states that the Port Commission has not yet opted to exercise its option to terminate the lease agreement under this provision. See id.

The Port Commission submits that Headwaters’s rebuttal is undermined by the following provision of the Lease And Operating Agreement:

Each condition, provision or obligation hereof is essential to this lease; any default by [Headwaters] in the performance of the letter or intent of each condition, provision, or obligation of [Headwaters] stipulated herein shall be grounds for [Headwaters] being considered in default hereof and for there to be termination of this lease.

Record Document 57, Ex. A-3, at ¶ 13. The Port Commission explains that while Headwaters may debate whether the 30,-000 ton language in paragraph twenty imposes an obligation, Headwaters cannot ignore the fact that this language at least constitutes a “provision” of the Lease And Operating Agreement as referenced in paragraph thirteen of the agreement. See Record Document 61 at 22-23. When Headwaters’s failure to ship 30,000 tons per year over any two year period is considered in light of paragraph thirteen, the Port Commission asserts that it is clear that Headwaters is in breach of the Lease And Operating Agreement. See id.

As a matter of law, the court does not discern any ambiguity on the face of the 30,000 ton language in paragraph twenty. This provision does not establish an obligation for Headwaters. Thus, Headwaters’s uncontested failure to ship 30,000 tons of fly ash over any two year period did not constitute a breach of paragraph twenty, and did not constitute a “default by [Headwaters] in the performance of the letter or intent of’ paragraph twenty, as referenced in paragraph thirteen of the agreement. Record Document 57, Ex. A-3, at ¶ 13. A plain reading of paragraph twenty indicates that Headwaters’s actions simply afford the Port Commission the option to terminate the lease. Accordingly, the Port Commission’s motion for partial summary judgment fails in this regard.

b. The Second Alleged Breach.

The Port Commission claims that Headwaters has breached paragraph nineteen of the Lease And Operating Agreement. That provision states:

It is understood that [Headwaters] shall be engaged in the operation of the business of shipping fly ash. [Headwaters] binds and obligates itself during the term of this lease to ship any and all fly ash obtained from the Dolet Hills Power Plant through the Red River Parish Port, for any of the fly ash removed from the Dolet Hills Power Plant that is to be shipped by water.

Record Document 57, Ex. A-3, at ¶ 19 (emphasis added). According to the Lease And Operating Agreement, “[t]he primary term for the lease is for twenty (20) years beginning on the date first entered above.” Id., Ex. A-3 at ¶ 1 (emphasis added). The date “first entered above” is August 13, 2003. See id., Ex. A-3 at l.

To bear its burden to demonstrate the absence of a genuine issue of material fact on this issue, the Port Commission cites a response by Headwaters to an interrogatory which establishes that during the term of the Lease And Operating Agreement, Headwaters has handled two water shipments of fly ash through the Natchitoches Parish Port. According to the cited source, Headwaters shipped 15,927.05 short tons of fly ash through the Natchitoches Parish Port on August 25, 2003, and 16,675.60 short tons of fly ash through the Natchitoches Parish Port on November 1, 2003. See Record Document 58 at 12 and Ex. B at 9. The Port Commission also attached a transcript of a deposition in which a Headwaters representative states that some of the fly ash that Headwaters shipped by water from the Natchitoches Parish Port was obtained from the Dolet Hills Power Plant. See id., Ex. E at 57-62.

Headwaters does not dispute the evidence cited by the Port Commission regarding the Natchitoches Parish Port fly ash shipments. Thus, without more, it would appear that Headwaters breached the plain terms of paragraph nineteen of the Lease And Operating Agreement. However, Headwaters submits that, as a matter of law, its Natchitoches Parish Port fly ash shipments did not breach the Lease And Operating Agreement for five reasons. As will be explained below, the defenses asserted by Headwaters fail to justify the facts noted by the Port Commission.

i. Headwaters’s First Defense.

The court will first address Headwaters’s arguments regarding an alleged suspended condition. Headwaters claims that the Lease And Operating Agreement actually contains two separate contracts or groups of obligations, a construction contract and a lease contract. According to Headwaters, the obligation to ship fly ash exclusively out of the Red River Parish Port is part of the contract' of lease. Headwaters asserts the entire lease contract is subject to an implied, unwritten suspensive condition and that the lease contract will not come into effect until the Port Commission takes title to the barge loading facility built by Headwaters. Since the Port Commission has refused to pay for and accept title to the barge loading facility built by Headwaters, Headwaters asserts the lease contract, including the agreement to ship fly ash exclusively out of the Red River Parish Port, has yet to become effective.

The plain language of the contract is unambiguous regarding this issue and thus governs this dispute, foreclosing the argument set forth by Headwaters based on the alleged implicit, unwritten designs of the parties. As Headwaters itself admits, paragraph one of the Lease And Operating Agreement clearly states that the term of the “lease” is for twenty years, beginning on August 13, 2003. Record Document 57, Ex. A-3 at ¶ 1. In paragraph nineteen of the Lease And Operating Agreement, Headwaters “binds and obligates itself during the term of the lease to ship any and all fly ash obtained from the Dolet Hills Power Plant through the Red River Parish Port, for any of the fly ash removed from the Dolet Hills Power Plant that is to be shipped by water.” Id., Ex. A-3 at ¶ 19 (emphasis added). Accordingly, Headwaters’s duty to ship fly ash from the Red River Parish Port was immediately binding on August 13, 2003, prior to the two Natchitoches Parish Port fly ash shipments discussed herein. If the parties had wanted to suspend the activation of this provision, they could have communicated this intent using the plain language of the contract as they did in other sections of the Lease And Operating Agreement. See id, Ex. A-3 at ¶ 2 (“Annual base rent shall be payable in advance on the anniversary date of facility completion commencing on the transfer date of the Bill of Sale between Lessor and Lessee.”) (emphasis added).

ii. Headwaters’s Second Defense.

The court will next address Headwaters’s arguments regarding reciprocal obligations. Under Louisiana law, Headwaters argues that since a contract of lease is a contract with reciprocal obligations, and since the Port Commission is allegedly in breach of the lease contract at issue, Headwaters cannot be put in default by the Port Commission. The court finds that the Port Commission is not guilty of the breach alleged under this point of argument, and thus Headwaters’s argument must fail.

If the contract of lease was not suspended, Headwaters asserts that when the Lease And Operating Agreement was executed, in August of 2003, the Port Commission was immediately in breach of its obligation under Louisiana Civil Code article 2684 “to deliver the thing [leased] at the agreed time and in good condition suitable for the purpose for which it was leased.” The thing leased was a certain segment of land within the area known as the Red River Parish Port. See Record Document 57, Ex. A-3 at ¶ 1. Headwaters asserts that the “intended use of the leased property was for the operation of a fly ash facility in the course of Headwaters’[s] shipping business, and this use was not possible until the [barge loading] Facility was built.” See Record Document 63 at 18. More accurately, paragraph one of the Lease And Operating Agreement states that the lease grants Headwaters the right to use a certain portion of the Red River Parish Port property “for the operation and maintenance of an inland port terminal for the transport of fly ash, for a truck service center, office facility, water and waste treatment, waste transfer facility and for such other related business purposes as [Headwaters] shall engage.” Record Document 57, Ex. A-3 at ¶ 1.

When the Lease And Operating Agreement was executed and the leased thing, the land, was tendered to Headwaters, the record before the court does not indicate that there was anything inherently wrong with the land which prohibited the purposes outlined above. The laws of lease did not require the Port Commission to guarantee that all of the mechanical equipment, infrastructure, etc., necessary to ship fly ash would be present at the Red River Parish Port at the time of the execution of the Lease And Operating Agreement. The Port Commission simply had a duty to ensure that the land it was leasing to Headwaters was timely delivered to Headwaters in a state which would not thwart the stated goals of the lessee. Headwaters does not cite any evidence which shows that the Port Commission has failed to satisfy this duty.

iii. Headwaters’s Third Defense.

In Headwaters’s third argument, it asserts that the Port Commission is es-topped from asserting claims of breach in regard to paragraph nineteen of the Lease And Operating Agreement. Headwaters cites several cases in support of the proposition that under Louisiana law “a governmental entity like the Port Commission can be estopped from denying acts of its agents which modify a contract’s written terms.” Record Document 63 at 20. A review of these cases reveals that the defendant is relying specifically on the theory of equitable estoppel to support this argument. See Elliott v. Catahoula Parish Police Jury, 816 So.2d 996 (La.App. 3rd Cir.2002); Louisiana Paving Co. v. La. Deptb of Highways, 372 So.2d 245 (La. App. 1st Cir.1979).

Headwaters notes several facts which it deems pertinent under this theory of estoppel. Headwaters cites portions of the record in which the Port Commission, through counsel and a deposed witness, admits that some members of the Port Commission knew that Headwaters intended to ship fly ash from the Dolet Hills Power Plant by water through the Natchitoches Parish Port before these shipments took place and before the parties signed the Lease And Operating Agreement. See Record Document 58 at 16; Record Document 57, Ex. F at 21-24. Headwaters then notes that the Port Commission did not express an objection to the Natchitoches Parish Port fly ash shipments until January of 2007, over three years after the last Natchitoches shipment, when the Port Commission filed suit in state court in Red River Parish, Louisiana. By January 2007, Headwaters states that it had already invested significant sums into the Port Commission fly ash venture. Finally, Headwaters argues that “the Natchitoches Port staff is the same staff that services the Port Commission; thus, when Headwaters arranged for the shipments to leave Natchitoches, it was dealing with the Port Commission’s staff.” Record Document 63 at 20.

“The cases holding that estoppels are not favored by [Louisiana] courts are legion ____” Harvey v. Richard, 200 La. 97, 7 So.2d 674, 677 (1942); see also Wilkinson v. Wilkinson, 323 So.2d 120, 126 (La.1975). The Louisiana Supreme Court has repeatedly held that estoppel in its various forms is a doctrine of last resort. See Palermo Land Co., Inc. v. Planning Comm’n, of Calcasieu Parish, 561 So.2d 482, 488 (La.1990) (citing Howard Trucking Co., Inc. v. Stassi, 485 So.2d 915, 918 (La.1986)).

Equitable estoppel has been defined as “the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate his conduct.” Morris v. Friedman, 663 So.2d 19, 25 (La.1995) (citations and quotations omitted). “Though rarely applied, [equitable] estoppel may be appropriate if three elements are established: (1) a representation by conduct or work; (2) justifiable reliance thereon; and (3) a change of position to one’s detriment because of the reliance or representation.” L.T. v. Chandler, 917 So.2d 753, 758 (La.App. 2d Cir.2005): see also Morris, 663 So.2d at 25. “When invoking the doctrine against a governmental agency, a somewhat greater burden may be appropriate, which would involve: (1) unequivocal advice from an unusually authoritative source, (2) reasonable reliance on that advice by an individual, (3) extreme harm resulting from that reliance, and (4) gross injustice to the individual in the absence of judicial estoppel.” Showboat Star P’ship v. Slaughter, 752 So.2d 390, 394 (La.App. 1st Cir.2000) (rev’d on other grounds); see also Showboat Star P’ship v. Slaughter, 789 So.2d 554, 562-63 (La.2001); CHL Enter., L.L.C. v. La. Dep’t of Revenue, 23 So.3d 1000, 1005-06 (La.App. 3d Cir.2009); Gulf States Utils. Co. v. La. Pub. Serv. Comm’n, 633 So.2d 1258, 1265-68 (La.1994) (Dennis, J., concurring).

The party invoking the doctrine of equitable estoppel bears “the burden of proving the facts upon which the estoppel is founded, as well as the affirmative showing that he was misled by the acts and forced to act to his prejudice .... ” Harvey, 7 So.2d at 677. “The representation required for the application of equitable estoppel is usually characterized as a ‘misrepresentation,’ which generally implies intent and suggests deliberate falsification.” Eicher v. La. State Police, 710 So.2d 799, 804 (La.App. 1st Cir.1998). “A party invoking this doctrine must exercise such diligence as would reasonably be expected under the prevailing circumstances to avoid mistake or understanding.” Chandler, 917 So.2d at 758. “A party having the means readily and conveniently to determine the true facts, but who fails to do so, cannot claim estoppel.” Morris, 663 So.2d at 25. “[E]stoppels ... properly apply only as to representations of fact.” Id. “A misrepresentation of law does not generally invoke equitable estoppel.” Eicher, 710 So.2d at 804. Nor will “mere silence ... work as estoppel.” Harvey, 7 So.2d at 677.

To make the silence of the party operate as an estoppel the circumstances must have been such as to render it his duty to speak, and there must also be an opportunity to speak. And it is essential that he should have had knowledge of the facts, and that the adverse party should have been ignorant of the truth, and have been misled into doing that which he would not have done but for such silence. As a corollary to the proposition that the party setting up an estoppel must have acted in reliance upon the conduct or representations of the party sought to be estopped, it is as a general rule essential that the former should not only have been destitute of knowledge of the real facts as to the matter in controversy, but should have also been without convenient or ready means of acquiring such knowledge.

Id. (citations and quotations omitted).

Under these governing standards, this court finds that Headwaters cannot survive partial summary judgment as to the Natchitoches Parish Port fly ash shipments by relying on the theory of equitable estoppel. As will be explained below, Headwaters has failed to cite evidence demonstrating that it can bear its burden at trial to satisfy either the first factor of the traditional formulation of the equitable estoppel analysis or the first factor of the more restrictive formulation of the equitable estoppel analysis for cases where estoppel is asserted against a public entity like the Port Commission.

As previously stated, under the traditional formulation of the equitable estoppel analysis, the first factor requires proof of a representation by the adverse party by conduct or work upon which the moving party relied. The first factor of the more restrictive version of the equitable estoppel analysis requires proof of unequivocal advice from an unusually authoritative source upon which the moving party relied. Headwaters does not cite any evidence which indicates that it relied on any legally significant conduct or work by the Port Commission when it decided to ship fly ash out of the Natchitoches Parish Port. There is certainly no evidence of a relevant, direct communication from the Port Commission to Headwaters. Furthermore, in keeping with the legal standards previously explained, the Port Commission’s silence cannot be relied on to satisfy the factors of the estoppel analysis because Headwaters fails to cite any portion of the record indicating that both parties were not in parity in regards to their knowledge of the pertinent facts.

Headwaters implies that the members of the Natchitoches Parish Port staff were acting as agents or mandatories of the Port Commission. Thus, when the Natchitoches Parish Port staff facilitated Headwaters’s Natchitoches fly ash shipments this, in fact, communicated the assent of the Port Commission to these shipments. To substantiate this claim, Headwaters relies on excerpts from a transcript of a deposition of Robert Breedlove (“Breed-love”), then executive director for the Natchitoches Parish Port. See Record Document 63, Ex. 5 at 4. According to the transcript, Breedlove stated:

November 2003 the Natchitoches Parish Port and the Red River Parish Port entered into a cooperative agreement whereby we would provide services to them, since they do not have a staff. Mainly that was to assist them in a project, a construction project whereby they had received a grant through the Port Construction Development Priority Program to build infrastructure at the Port.

They had never dealt with a project like that, we had; so we assisted them with that, and then as things evolved we began to take care of administrative things, like, for instance, prepare their meeting minutes, attend their meetings and things like that.

Id., Ex. 5 at 4-5. However, the court notes that later in that same deposition, Breedlove specifically stated that he could not testify to the capabilities of the Red River Parish Port at the time of the Natchitoches fly ash shipments, and that he did not know why Headwaters shipped fly ash through the Natchitoches Parish Port. See Record Document 57, Ex. F at 22-23. Breedlove stated “I just know that [Headwaters] came to us and wanted to ship fly ash, and we were able to accommodate them.” Id., Ex. F at 22.

The cited sources do not indicate that the members of the Natchitoches Parish Port staff were mandatories in fact who were duly empowered to approve deviations from Port Commission contracts. The evidence cited by Headwaters also does not support any claim of putative mandate. See La. Civ.Code art. 3021. For example, the cited portions of the record fail to establish that the Port Commission communicated to Headwaters that the Natchitoches Parish Port staff could authorize a deviation from a written contract on behalf of the Port Commission, or that the Natchitoches Parish Port staff made any independent communication to this effect. Moreover, the cited sources do not indicate that Headwaters was aware of or, more importantly, relied upon the cooperative agreement between the Natchitoches Parish Port and the Red River Parish Port when it arranged to ship fly ash out of Natchitoches. Thus, Headwaters has failed to satisfy its burden to cite evidence which establishes that Headwaters relied on any legally significant conduct or work by the Port Commission when the fly ash was shipped from Natchitoches. Accordingly, the first factor of the traditional estoppel analysis is not satisfied. Furthermore, there is no evidence of unequivocal advice from an unusually authoritative source representing .the Port Commission upon which Headwaters relied to justify the Natchitoches fly ash shipments. Hence, the first factor of the more restrictive estoppel analysis for public entities is also not satisfied. Therefore, this court finds that Headwaters cannot survive partial summary judgment as it concerns the Natchitoches Parish Port fly ash shipments by relying on the theory of equitable estoppel.

iv. Headwaters’s Fourth Defense.

Headwaters also argues that it was not provided with the notice the Lease And Operating Agreement requires before a party may be found in default. Headwaters primarily relies on paragraph thirteen of the Lease And Operating Agreement to support this argument. In pertinent part, paragraph thirteen states:

Neither Lessor nor Lessee shall be considered in default as to any obligation or condition of this lease, and the lease shall not be considered as violated in any way unless the status claimed to be a default or violation shall continue for fifteen (15) days after written notice is posted by certified mail to Lessor or Lessee, as the case may be, amounts due, including any penalties and interest, within the thirty (30) days after notice is given. Non-monetary defaults may be cured by the good faith commencement of activity needed to cure within the thirty day period and diligently continuing such activities until cure is completed.

Record Document 57, Ex. A-3 at ¶ 13.

The Port Commission first asserts that the shipment of fly ash out of the Natchitoches Parish Port is a breach of contract which cannot be cured, and that, accordingly, “putting Headwaters in default is unnecessary.” Record Document 58 at 25. This argument is flatly contradicted by the plain language of paragraph thirteen of the Lease And Operating Agreement, and therefore must fail. See id. (stating that neither party “shall be considered in default as to any obligation or condition of this lease, and the lease shall not be considered as violated in any way” unless the requirements in paragraph thirteen are satisfied).

Alternatively, the Port Commission has argued that the lawsuit it filed in state court on January 3, 2007, clearly put Headwaters in default. See id. The referenced state court petition, in pertinent part, stated:

The acts constituting the default of Headwaters Resources, Inc. include but are not limited to the following:

d) Headwaters Resources, Inc. has failed to ship through the Red River Parish Port all of the fly ash removed from the Dolet Hill Power Plant that was shipped by water and in fact has shipped fly ash from the Natchitoches Parish Port;

Record Document 1, State Court Petition at ¶ 8. The record shows that this state court petition was served to Headwaters’s statutory agent. See id., Ex. A. The Port Commission cites several sources which show that, under Louisiana’s Civil Code, a lawsuit may serve as notice sufficient to lead to a subsequent finding of default. See 6 Saul Litvinoff, Louisiana Civil Law Treatise, The Law of Obligations, § 2.5 (West 1999) (citing La. Civ.Code art. 1991); Moran v. Wilshire Ins. Co., 520 So.2d 1173 (La.App. 3d Cir.1988). Headwaters does not contest the assertion that the Port Commission’s lawsuit was sufficient to meet the statutory requirements for notice. See Record Document 63 at 22. Instead, Headwaters asserts that what is considered sufficient notice under the civil code is not relevant to the present issue; the issue is what is sufficient notice under the terms of the contract between these two parties. See id. Under the standards set forth by the contract, Headwaters argues that proper notice has not been given.

Headwaters first notes that paragraph thirteen expressly requires that notice of default must be “posted by certified mail,” and that there is no evidence that the Port Commission has ever provided Headwaters notice by “certified mail” as to the Natchitoches Parish Port fly ash shipments or any other alleged breach. Id. at 22 n. 96. The record before the court shows that the Port Commission’s state court petition was served on Headwaters, but does not indicate that this service occurred by certified mail. See Record Document 1, Ex. A (state court return of service for Headwaters through CT Corp. on 2/08/2007).

Headwaters cannot survive summary judgment on this hyper-technical interpretation of the term “certified mail.” It is clear that the notice provided by the Port Commission’s state court petition, which Headwaters does not dispute provided sufficient notice under the relevant statutes, was delivered in a manner sufficient to satisfy the notice requirements of the Lease And Operating Agreement.

The purpose of the requirement that notice be given by certified mail is to ensure receipt. Where the party to be notified does not contest receipt, the failure to use certified mail does not invalidate the notice. Where adequate notice is in fact given and its receipt is not contested, technicalities of form may be overlooked.

Board of Comm’rs of the Port of New Orleans v. Turner Marine Bulk, Inc., 629 So.2d 1278, 1283 (La.App. 4th Cir.1993) (addressing language in a lease contract) (internal citations omitted), unit denied, 634 So.2d 392 (La.1994): see also Gilchrist Const. Co., Inc. v. Terral Riverservice, Inc., 819 So.2d 362, 366 (La.App. 3d Cir.2002) (addressing statutory registered or certified mail requirement and issuing findings substantially similar to those noted above), writ denied, 828 So.2d 1119 (La.2002). Headwaters does not deny that it received the state court petition and thus it received the required notice of default required under the Lease And Operating Agreement.

Headwaters next urges that the state court petition did not qualify as sufficient notice of default under paragraph thirteen of the Lease And Operating Agreement because it did not contemplate a cure. Headwaters implies that every proper notice under paragraph thirteen of the Lease And Operating Agreement must suggest a potential cure. In this regard, the plain language of the provision speaks for itself. The party providing notice must inform the other party of “the status claimed to be a default or violation.” Record Document 57, Ex. A-3 at ¶ 13. The Port Commission is not required to suggest a cure under the express terms of paragraph thirteen. A notice is simply “an announcement or intimation of something impending; [a] warning.” Random House Dictionary of the English Language 1326 (2d ed. 1987). The Port Commission’s state court petition was sufficient in this regard.

v. Headwaters’s Fifth Defense.

In its final series of arguments, Headwaters argues that even if one assumes that the notice of default was adequate as to the breach effected by the Natchitoches Parish Port fly ash shipments, Headwaters’s subsequent actions have cured this default. See Record Document 63 at 23-24. Even if this court were to assume that the Port Commission was incorrect in its assertion that the breach related to the Natchitoches Parish Port fly ash shipments was incurable, the court does not agree that Headwaters’s actions constitute a cure which forecloses a finding of default under paragraph thirteen of the Lease And Operating Agreement.

Headwaters has asserted that the only damage that the Port Commission could have suffered due to the Natchitoches Parish Port fly ash shipments was a deprivation of wharfage fees. See id Headwaters then notes that in December of 2007 it tendered a payment of $40,000 to the Port Commission to pay the “minimum wharf-age” allegedly required under the Lease And Operating Agreement for the years 2004-2007. See id at 23 n. 100 (explaining that the submitted payments were to cover the costs of minimum wharfage and land rental specifically); Record Document 61 at 18. Headwaters asserts that this payment more than adequately cures any potential damage the Port Commission may have suffered due to the Natchitoches Parish Port fly ash shipments.

Paragraph thirteen of the Lease And Operating Agreement states that any cure sufficient to foreclose a finding of default must occur or commence within thirty days from the notice of default. See Record Document 57, Ex. A-3 at ¶ 13. The receipt of service of process for the Port Commission’s state court petition is marked “2/08/2007.” Record Document 1, Ex. A. Thus, even if the court assumes Headwaters’s payments in December of 2007 could cure the breach associated with the Natchitoches Parish Port fly ash shipments, this cure did not occur within the time limit set by the Lease And Operating Agreement and thus does not foreclose a finding of default.

However, Headwaters asserts that when the Port Commission accepted the minimum wharfage payments in December of 2007 “any and all bases of default were immediately cured and the Port Commission was required to issue a new notice to put Headwaters in default.” Record Document 63 at 24. The court finds that the laws concerning compromise and the doctrine of accord and satisfaction govern this question. “For accord and satisfaction to occur, a debtor must tender payment to a creditor in full satisfaction of a Disputed claim, and the creditor in turn must accept the tender ... As in any other contract, acceptance of the offer must be an informed consent.... The offer of compromise must be explicit.” Louisiana Nat. Bank of Baton Rouge v. Heindel, 365 So.2d 37, 38-39 (La.App. 4th Cir.1978) (emphasis added); Cf. Rivett v. State Farm Fire and Cas. Co., 508 So.2d 1356, 1358 n. 3 (La.1987) (noting that accord and satisfaction is a common law doctrine whose use in Louisiana’s civil law jurisdiction is questionable and that Louisiana has specific codal provisions governing the requirements for contracts of compromise); Cf. La. Civ.Code arts. 3071 et. seq. Similarly, the Louisiana Civil Code states that a contract of compromise is only effected when the claimant of a disputed claim “accepts payment that the other party tenders with the clearly expressed written condition that acceptance of the payment will extinguish the obligation.” La. Civ. Code art. 3079 (emphasis added). When Headwaters tendered the referenced payment in December of 2007, the cover letter to which the pertinent checks were attached expressly stated that the payments were for the “annual put-through” or minimum wharfage due, and for the “annual lease” or rental due on the land. See Record Document 58, Ex. 44; see also Record Document 63 at 23 n. 100 (wherein Headwaters confirms the above). There is no mention in the cover letter that this payment was in any way an attempt to cure the breach of the Lease And Operating Agreement caused by the Natchitoches Parish Port fly ash shipments. There is no evidence that the Port Commission made an informed decision to accept these payments as a cure for the Natchitoches Parish Port fly ash shipments. Therefore, the Port Commission’s acceptance of the payments Headwaters tendered in December of 2007 does not foreclose a finding of default based on the Natchitoches Parish Port fly ash shipments.

In sum, the court finds that the Port Commission is entitled to a finding on summary judgment that Headwaters breached the Lease And Operating Agreement by shipping fly ash out of the Natchitoches Parish Port after August 13, 2003. The facts concerning this breach were uncontested, and the legal defenses asserted by Headwaters fail to overcome the opposing facts noted by the Port Commission,

c. The Third Alleged Breach.

The Port Commission argues that Headwaters has breached paragraph three of the Lease And Operating Agreement. See Record Document 58 at 10. This paragraph, in pertinent part, states:

As an incentive for Lessee to throughput waterborne tonnage through Lessor’s facility, Lessor shall make available to Lessee up to Two Million, Three Hundred Twenty-One Thousand, Three Hundred Fifty and no/100 dollars ($2, 321,350) for construction improvements, as more fully described in Exhibit A-2, subject to the following covenants and other provisions contained herein:....

Record Document 57, Ex. A-3 at ¶ 3 (emphasis added). Exhibit A-2 of the Lease And Operating Agreement describes a barge loading facility with six separate barge loading stations. Id. at Ex. A-2.

As proof of this alleged breach, the Port Commission cites the deposition of an engineer who testified that the barge loading facility built by Headwaters has only four loading stations, not the six described in Exhibit A-2 of the Lease And Operating Agreement. See Record Document 58, Ex. F at 77-84. In response, Headwaters admits that the design for the barge loading facility originally included six barge loading towers, as per Exhibit A-2 of the Lease And Operating Agreement, and that Headwaters later changed this design and constructed a facility with four barge loading towers. See Record Document 63 at 7. Thus, without more, it appears that Headwaters has violated the express terms of the Lease And Operating Agreement. However, Headwaters asserts several defenses to justify this deviation from the plain text of the Lease And Operating Agreement.

Before reviewing the defenses asserted by Headwaters, the court must determine whether Headwaters had an actual obligation, of which it could be found in breach, to build the barge loading facility described in paragraph three. The parties have expressed conflicting views in this regard over the course of the litigation process.

After considering paragraph three of the Lease And Operating Agreement in light of the other provisions of that contract, this court has no difficulty finding that the Lease And Operating Agreement imposes an obligation on Headwaters to build the barge loading facility specifically described in paragraph three and Exhibit A-2 of the agreement. The language used in paragraph three does not clearly indicate that the parties believed that the construction of said barge loading facility was optional rather than mandatory. When the terms in paragraph three are considered in the context of the entire agreement, the only-logical and reasonable conclusion that can be reached is that Headwaters was obligated to build the barge loading facility described therein. For example, as the court will explain in a subsequent section of this ruling, Headwaters’s obligation to pay the Port Commission all of the various rentals and fees noted in the Lease And Operating Agreement is suspended until several requirements are satisfied, primarily the construction of the barge loading facility specifically described in paragraph three and Exhibit A-2 of the agreement. Therefore, if this court interpreted paragraph three of the agreement as a provision which simply provided Headwaters with the option to either build the facility specifically described in the agreement for reimbursement or build a facility which did not satisfy the requirements therein without the benefit of reimbursement, Headwaters could construct a facility which did not comport with the Lease And Operating Agreement and ship fly ash out of the Red River Parish Port for several years without activating its obligation to pay any rent or wharfage to the Port Commission — an illogical and unreasonable result. It is clear from a plain reading of the Lease And Operating Agreement that the agreement was designed based on the understanding that Headwaters would build the barge loading facility specifically described in paragraph three and Exhibit A-2 of the Lease And Operating Agreement.

Having found that the Lease And Operating Agreement imposes an obligation upon Headwaters to build the barge loading facility specifically described in paragraph three and Exhibit A-2 of that agreement, the court must now determine if Headwaters is in breach of this obligation. As noted above, the parties do not dispute that the Lease And Operating Agreement, as originally drafted, requires Headwaters to construct a barge loading facility with six barge loading stations, and that Headwaters deviated from this plan and instead built a facility with only four barge loading stations. To survive summary judgment, Headwaters relies upon four legal arguments to justify its actions. Each of these defenses will be explored in turn.

i. Headwaters’s First Defense.

Headwaters first contends that the Port Commission approved the reduction of the number of barge loading stations from six to four through two agents, and that this method of approval is in accord with the plain terms of the Lease And Operating Agreement. See Record Document 63 at 9. Headwaters introduces this argument by noting that paragraph three of the Lease And Operating Agreement states that Headwaters should build the- barge loading facility, as described in Exhibit A-2, “subject to the following covenants and other provisions contained herein.” Record Document 57, Ex. A-3 at ¶ 3. The covenants and provisions referenced in this quote include the following statement: “[a]ll engineering designs and plans shall be submitted to the Lessor for prior approval and Lessor retains the right to reasonably inspect construction progress.” Id. (emphasis added). Referencing this line, Headwaters argues that the Lease And Operating Agreement “did not specify any particular manner in which the [prior] ‘approval’ of design changes must occur.” Record Document 63 at 9. Headwaters then contends that the evidence shows that the Port Commission retained Wink Engineering, LLC (“Wink”) to act as its agent in the design and construction process. See id. Headwaters then argues that Wink and the Port Commission’s attorney, in accordance with the language of the Lease And Operating Agreement quoted above, approved the design change which reduced the number of barge loading stations from six to four. See id.

Headwaters is incorrect in its assertion that the Lease And Operating Agreement does not specify the method in which the above-referenced “prior approval” of design changes must occur. In paragraph twenty-six of the agreement, it states:

The parties hereto hereby accept this lease and operating agreement in all its parts and clauses, and agree that this writing covers the entire agreement existing between the parties hereto and that no contemporaneous or subsequent agreement entered into with reference to this lease and operating agreement, by the parties hereto, shall be binding upon any party hereto unless reduced to writing and signed by the Lessor and Lessee.

Record Document 57, Ex. A-3 at ¶ 26 (emphasis added). The above-quoted provision clearly states that any agreement between Headwaters and the Port Commission subsequent to and regarding the Lease And Operating Agreement must be in writing and signed by both parties. See id. Headwaters has not provided any evidence that there is a signed written amendment to the Lease And Operating Agreement in which the parties jointly approved the design change at issue.

Furthermore, the portions of the record cited by Headwaters fail to support these “agent” arguments. Again, Headwaters asserts that the Port Commission’s attorney, Bill Jones, and representatives of Wink acted as agents of the Port Commission and “approved” the design change which reduced the number of barge loading stations from six to four. Even assuming arguendo that these parties were agents of the Port Commission properly empowered to grant the approval referenced, the evidence cited by Headwaters fails to demonstrate that these parties “approved” the design change at issue.

As evidence of the alleged design change approval given by the Port Commission’s attorney, Headwaters cites a deposition in which a letter from the Port Commission’s attorney to a Headwaters- representative is discussed. The discussed portion of the letter in no way signifies approval of the design change at issue. In the letter, the Port Commission attorney simply asked a Headwaters representative for evidence that the design change reducing the number of barge loading stations from six to four would not affect Headwaters’s contractual obligation to install a facility capable of a throughput of 400,000 tons of fly ash per year. See Record Document 63, Ex. 2 at 55-56.

Similarly, the deposition of the Wink representative cited by Headwaters does not reveal that a Wink representative ever represented that they were approving a change to the Lease And Operating Agreement which would authorize a reduction of the number of barge loading stations from six to four. See Record Document 63, Ex. 1. In fact, based on the evidence cited by Headwaters, it appears that Wink did not authorize or approve any actions on behalf of the Port Commission. Instead, Wink played a very limited role. The deposed Wink representative stated, “[essentially our role was to report [on] the progress [of the barge loading facility construction project], just to communicate with the Port themselves.” Id., Ex. 1 at 26, lines 1-3. In the cited deposition, the Wink representative stated that “we never had anything to do with the contract [between Headwaters and the Port Commission].” Id., Ex. 1 at 15, lines 2-3. In fact, the deposed Wink representative stated that the consultant for the Port Commission who outlined the parameters for Wink’s role in evaluating the construction of the barge loading facility did not even provide Wink with a copy of the Lease And Operating Agreement. See id., Ex. 1 at 16, lines 3-4.

Though Headwaters implies otherwise, the reports Wink generated clearly had nothing to do with the explicit terms of the Lease And Operating Agreement. Instead of evaluating the construction of the barge loading facility based on the contract between Headwaters and the Port Commission, Wink, acting on the direction provided by a consultant hired by the Port Commission, focused on ensuring that the barge loading facility could handle 400,000 tons of cargo annually. See id., Ex. 1 at 14-15. The deposed Wink representative stated that he knew that the Port Commission had been informed that Headwaters had altered its design for the barge loading facility to include four instead of six loading stations, and since he perceived no objection from the Port Commission as to this change, he proceeded to prepare construction evaluation reports based upon the drawings of the redesigned, four-station barge loading facility which were provided by Headwaters. See id., Ex. 1 at 90. Again, based on the advice of a consultant hired by the Port Commission, the Wink engineers focused on ensuring that the facility which Headwaters designed and built could handle 400,000 tons of cargo annually. See id., Ex. 1 at 15 and 90. The Wink reports never measured compliance with the plain terms of the contract between Headwaters and the Port Commission.

At no point in the transcript cited by Headwaters does the deposed Wink representative state that he or any Wink employee ever received a request from Headwaters for “prior approval” for the reduction of the number of barge loading stations originally specified in the Lease And Operating Agreement. The portions of the record cited by Headwaters do not show that Wink ever gave Headwaters “approval” to deviate from the plain language of the Lease And Operating Agreement requiring a barge loading facility with six barge loading stations. It is clear that Wink reported on, responded to, but did not authorize Headwaters’s actions.

ii. Headwaters’s Second Defense.

Headwaters’s second set of defenses is based on the assertion that the “threshold” or “incipient” obligation of the Lease And Operating Agreement is the obligation to build or construct the barge loading facility referenced above, and thus the special rules governing construction contracts apply to the issue at hand. See Record Documents 63 at 9, 64 at 1-5 and 68 at 2. Under the special rules governing construction contracts, Headwaters asserts that even when a written contract contains a provision that change orders must be in writing, as the Lease And Operating Agreement at issue does, Louisiana law allows for a construction contract to be modified by oral contracts and the conduct of the parties.. See Record Documents 63 at 9 and 64 at 4. Headwaters then asserts that such an extrinsic modification was effected here by the actions of the Port Commission’s agents, apparently referencing the actions of Wink and the Port Commission attorney discussed above. See Record Document 63 at 9. Headwaters also asserts that under the law governing construction contracts, it is due payment for substantial performance even if this court finds it did not build a barge loading facility which fully complied with the terms of the Lease And Operating Agreement. See Record Documents 63 at 10-11 and 64 at 5 For the reasons which follow, the court finds that the rules governing construction contracts do not govern the present dispute. Accordingly, the arguments noted above must fail.

“[A] party to a contract may enter ‘into a single contract and yet be bound to perform two or more different obligations.’ ” KSLA-TV, Inc. v. Radio Corp. of Am., 501 F.Supp. 891, 893 (W.D.La. 1980) (quoting The Work of the Louisiana Appellate Courts for the 1977-1978 Term-Sales, 39 La.L.Rev. 705, 709 (1979)). Such is the case with the Lease And Operating Agreement in the case at bar.

When it is possible to isolate any of these obligations from the others, it remains subject to sanctions of its own. When different obligations are intimately connected, however, one of them must be recognized as fundamental and if it is one to do, for instance, the whole contract will be treated as one giving rise to obligations of that kind.

7 Saul Litvinoff, Louisiana Civil Law Treatise. Obligations Book 2, § 157 (West 1975); see also KSLA-TV, Inc., 501 F.Supp. at 893-94 (discussing these same principles). Thus, this court must determine if the various obligations imposed under the Lease And Operating Agreement can be isolated, or whether they are all intimately connected. If the court finds that the various obligations imposed under the Lease And Operating Agreement are intimately connected, this court must determine which obligation is fundamental, and thereby determine which laws will govern the present dispute.

In its latest filing, Headwaters asserts that the various obligations imposed by the Lease And Operating Agreement are designed to serve a common purpose. See Record Document 68 at 2. The court agrees, and further finds that these obligations are intimately connected. The manner in which the parties constructed the present contract clearly indicates that each obligation is dependent upon the existence of the others, and that no single obligation contained in the contract was designed to stand alone, or to be isolated. Thus, the court must determine which obligation is fundamental. Headwaters implies that the fundamental obligation is the construction of a barge loading facility, and, accordingly, that the rules specific to construction contracts govern the present dispute. See Record Document 68 at 2. Even assuming arguendo that Headwaters is correct and that a portion of this contract could be considered a construction contract, the court strongly disagrees that this would be considered the primary obligation of the contract. The court finds that the fundamental obligation placed upon Headwaters was to ship fly ash rather than to build the barge loading facility. This is a generic obligation to do. Thus, the general rules applicable to obligations and contracts control rather than the specific rules designed for construction contracts. Accordingly, the arguments asserted by Headwaters which are based on the assumption that the rules concerning construction contracts govern in the instant case are not relevant to the present matter.

iii. Headwaters’s Third Defense.

In its third defense, Headwaters asserts that this alleged deviation from the design for the barge loading facility was an “obvious deficiency as to which the Port Commission is estopped from complaining after construction ceased.” Record Documents 64 at 4 and 63 at 9-10. To the extent this is not a construction contract based argument, which as previously explained is irrelevant to this ease, this is an equitable estoppel argument. See Record Documents 63 at 10 and 64 at 4. The elements of equitable estoppel and the rules governing this theory were described at length in the section of this ruling addressing the Natchitoches Parish Port fly ash shipments. As the court found in that section, see page 16, the mere silence of the Port Commission is not enough in this case to satisfy the requirements of equitable estoppel because there is no evidence that there was any disparity between the parties as to their knowledge of the relevant facts. Furthermore, Headwaters has failed to produce evidence demonstrating that it relied on any particular communication from the Port Commission or any of the Port Commission’s alleged agents when it changed the design of the barge loading facility and constructed a four station barge loading facility instead of a six station barge loading facility. Therefore, under either the more lenient or more stringent versions of equitable estoppel outlined previously, Headwaters has failed to establish that' equitable estoppel applies in this case.

iv. Headwaters’s Fourth Defense.

For its fourth and final defense, Headwaters has asserted that it has not received proper notice of this and other alleged breaches of the Lease And Operating Agreement. This allegation was answered under the section of this ruling addressing the