Judgment rendered September 30, 2026.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.
No. 57,049-CA
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
CARL FRANKLIN Plaintiffs-Appellants HATTIE FRANKLIN
versus
CITY OF BOSSIER, MAYOR Defendants-Appellees THOMAS H. CHANDLER OF
BOSSIER, OFFICIAL CAPACITY
BOSSIER CITY POLICE
DEPARTMENT, CHIEF OF
POLICE BOSSIER CITY,
OPTIMUM aka SUDDENLINK,
AT&T, MIKE WARE, PAMELA
WARE, SHERIFF JULIAN
WHITTINGTON
*****
Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 169,662
Honorable Alexandra Aiello Stahl, Judge
*****
LAW OFFICE OF CAROL D. POWELL Counsel for Appellants LEXING AND ASSOCIATES (PLLC)
By: Carol D. Powell-Lexing
WIENER, WEISS & MADISON Counsel for Appellees, By: Layne A. Clark, Jr. City of Bossier and
Bossier City Police
Department
SIMON, PERAGINE, SMITH, & Counsel for Appellees,
REDFEARN, LLP BellSouth
By: Windsor V. Richmond Telecommunications,
LLC d/b/a AT&T
Louisiana
*****
Before COX, STEPHENS, and THOMPSON, JJ.
STEPHENS, J.,
This civil appeal arises from the 26th Judicial District Court, Parish of
Bossier, the Honorable Allie Aiello Stahl, Judge, presiding. The trial court
rendered judgment granting a motion for summary judgment filed by the
defendant, BellSouth Telecommunications, LLC d/b/a AT&T Louisiana
(“BellSouth”), dismissing with prejudice all claims filed by plaintiffs, Carl
and Hattie Franklin (“the Franklins”). This appeal was filed by the
Franklins. For the reasons expressed herein, we affirm the trial court’s
judgment.
FACTS AND PROCEDURAL HISTORY
In their original petition filed on March 21, 2023, the Franklins named
the following parties as defendants:
• The City of Bossier
• Mayor Thomas H. Chandler
• The Bossier City Council
• Optimum a/k/a Suddenlink
• AT&T/BellSouth – a telephone service conducting business in
Louisiana1
• Mike and Pamela Ware
• Bossier Parish Sheriff Julian Whittington
On December 11, 2023, the Franklins filed an amended petition,
omitting Mayor Chandler and the Bossier City Council as defendants. On
April 9, 2025, this Court affirmed the trial court’s dismissal of the Wares,
Suddenlink, and Sheriff Whittington. See Franklin v. City of Bossier,
56,192 (La. App. 2 Cir. 4/9/25), 409 So. 3d 1052, writ denied, 25-00606 (La.
1
Several instances in the record show that the Franklins often used Suddenlink and AT&T interchangeably. On November 9, 2023, BellSouth filed a reply to the Franklins’ opposition to Suddenlink’s peremptory exception of no cause of action and improper cumulation of actions. In its reply, BellSouth highlighted instances of the Franklins using the two utility companies interchangeably and requested that the trial court sever the claims against the utility companies. The trial court denied the exception of improper cumulation of actions.
9/16/25), 416 So. 3d 476. All claims against the City of Bossier were stayed
pending the outcome of related criminal charges. Consequently, BellSouth
is the only defendant remaining.
According to the Franklins’ petition, on April 27, 2022, Suddenlink
and BellSouth entered the Franklins’ property without permission to place
internet lines on behalf of the Franklins’ neighbors, the Wares. On this same
date, the Wares allegedly placed stakes on the Franklins’ property, and when
the Wares were asked to remove the stakes, they contacted the Bossier City
Police. The disagreement over the placement of the stakes ultimately led to
the arrest of Carl Franklin and his daughter.
The Franklins filed an amended petition on December 11, 2023, in
which they alleged that Suddenlink and BellSouth dug an extremely deep
hole in the Franklins’ yard to place internet lines. This allegedly caused
damage to the Franklins’ plumbing resulting in the Franklins having to shut
down water flow to faucets in their home. The Franklins also asserted that
the placement of the internet line caused a sunken hole in the yard which
affected the landscaping and killed plants and grass. The petition further
claimed that the hole and internet line caused leaking and lingering water in
the Franklins’ yard which caused a mosquito infestation on the property.
The Franklins accused BellSouth of conversion and trespass because “they
did not have a servitude” and alleged that they suffered the loss of use of
their property as well as mental and physical damages. The Franklins also
alleged that BellSouth was liable for loss of use of the Franklins’ property
and mental and physical damages arising out of the false arrest.
On August 25, 2025, BellSouth filed its motion for summary
judgment in which it claimed that the Franklins would be unable to prove
2
that BellSouth trespassed on the Franklins’ property. BellSouth stated that
the Franklins’ neighborhood is encumbered by utility and drainage
easements which are intended for use by utility companies, the city, and for
drainage purposes. BellSouth utilized these easements throughout the
neighborhood to install underground fiber cables that provide internet and
home phone services to customers within the subdivision. BellSouth
indicated that a utility easement exists between the Franklin and Ware
properties, and at one time, BellSouth had an active pedestal in that location.
BellSouth specified in its motion for summary judgment that despite this
recorded easement, the Franklins repeatedly harassed BellSouth technicians
as they serviced the pedestal. Local law enforcement was contacted on
several occasions to protect BellSouth employees from the Franklins’
harassment and to enforce BellSouth’s use of the easement. Following a
harassment incident between the Franklins and a BellSouth technician in
February 2022, BellSouth paid a contractor to install a new pedestal on the
Wares’ property in March 2022.
In its memorandum of support of the motion for summary judgment,
BellSouth maintained that it had no record of any dispatch to the Wares’
property or the Franklins’ property on April 27, 2022. BellSouth further
urged that no evidence existed that BellSouth exceeded the scope of the
easement and trespassed on the Franklins’ property at any point in time. In
support of its motion, BellSouth submitted the affidavit of Nika Echols, its
Associate Director of Network Services in Northwest Louisiana. In her
affidavit, Ms. Echols stated that she personally requested that the Franklins’
service be cancelled due to the harassment and threats BellSouth employees
received when attempting to use the utility easement to maintain BellSouth’s
3
facilities. She also attested that she personally reviewed the Wares’ account
records and saw that BellSouth personnel were not dispatched or present on
April 27, 2022. Ms. Echols stated that the property records and BellSouth
records showed an easement on the Franklins’ property, and if BellSouth
personnel entered the property at any time, it was solely within the
boundaries of the easement to perform installation and repair work related to
internet service for customers. BellSouth also attached the StoneBridge
Subdivision plat which showed two easements: a utility easement labeled as
“closed and abandoned” and another utility easement labeled as an
“existing” utility easement.
On November 4, 2025, the trial court held a hearing on BellSouth’s
motion for summary judgment. The Franklins first made an oral motion to
strike Ms. Echols’s affidavit as hearsay because it lacked personal
knowledge. BellSouth explained that Ms. Echols placed the work order for
the pedestal to be relocated, and she oversaw the entire area at issue for
AT&T/BellSouth as the Associate Director of Network Services. The trial
court denied the Franklins’ oral motion to strike and indicated that the
affidavit was clearly based on personal knowledge, and Ms. Echols was a
qualified affiant due to her position as Associate Director of Network
Services.
In its argument related to the motion for summary judgment,
BellSouth maintained that the petition was for damages resulting from an
alleged false arrest as well as a standing property dispute between the
Franklins and the Wares. BellSouth noted that their records indicated that
BellSouth personnel were not dispatched or present on the Ware or Franklin
property on April 27, 2022. Even if BellSouth representatives had been
4
present that day, they would have been within the scope of the existing
easement located between the Ware and Franklin properties.
Following the arguments made, the trial court granted BellSouth’s
motion for summary judgment, finding that the Franklins failed to offer
evidence supporting any type of trespass on April 27, 2022. It also noted
that there was no evidence presented to show that BellSouth installed any
equipment or serviced the pedestal outside of the scope of the easement.
The Franklins appealed the trial court’s judgment. This Court determined
that the trial court’s November 25, 2025, judgment lacked proper decretal
language expressly indicating the effect of the relief awarded.
Consequently, the trial court amended the judgment on June 5, 2026,
granting BellSouth’s motion for summary judgment and dismissing with
prejudice the Franklins’ claims against BellSouth.
DISCUSSION
On appeal, the Franklins assert four assignments of error. First, the
Franklins maintain that the trial court erred in denying the oral motion to
strike Ms. Echols’s affidavit when the evidentiary objection was made in the
opposition memorandum. Next, they assert that the trial court erred in
granting BellSouth’s summary judgment motion when the only evidence
presented was, in the Franklins’ opinion, a defective affidavit. Third, the
Franklins submit that the trial court erred in granting the motion for
summary judgment because BellSouth’s utility easement was allegedly
closed and abandoned. Finally, the Franklins urge that genuine issues of
material fact exist related to BellSouth’s trespass on the Franklins’ property.
Appellate courts review motions for summary judgment de novo,
using the same criteria that govern the trial court’s consideration of whether
5
the summary judgment is appropriate. Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So. 3d 791; Dupree v. Bossier Par. Sch. Bd., 56,091
(La. App. 2 Cir. 2/26/25), 408 So. 3d 468, writ denied, 25-00368 (La.
6/3/25), 410 So. 3d 787; Bank of Am., N.A. v. Green, 52,044 (La. App. 2 Cir.
5/23/18), 249 So. 3d 219. Summary judgment is favored by law and
provides a vehicle by which the just, speedy, and inexpensive determination
of an action may be achieved. La. C.C.P. art. 966(A)(2). We view the
record and all reasonable inferences to be drawn from it in the light most
favorable to the nonmoving party. Hines v. Garrett, 04-0806 (La. 6/25/04),
876 So. 2d 764; Dupree, supra. A motion for summary judgment shall be
granted if the motion, memorandum, and supporting documents show there
is no genuine issue as to material fact and the mover is entitled to judgment
as a matter of law. La. C.C.P. art. 966(A)(3).
If the mover will not bear the burden of proof at trial on the issue that
is before the court on the motion for summary judgment, the mover’s burden
on the motion does not require him to negate all essential elements of the
adverse party’s claim, action, or defense, but rather to point out to the court
the absence of factual support for one or more elements essential to the
adverse party’s claim, action, or defense. La. C.C.P. art. 966(D)(1). The
burden is on the adverse party to produce factual support sufficient to
establish the existence of a genuine issue of material fact or that the mover is
not entitled to judgment as a matter of law. Id.
A genuine issue is one about which reasonable persons could disagree.
Hines, supra; Dupree, supra; Franklin v. Dick, 51,479 (La. App. 2 Cir.
6/21/17), 224 So. 3d 1130. In determining whether a fact is genuine for
purposes of summary judgment, courts cannot consider or weigh the merits,
6
make credibility determinations, or evaluate testimony. Suire v. Lafayette
City-Parish Consol. Gov’t, 04-1459 (La. 4/12/05), 907 So. 2d 37; Sepulvado
on Behalf of Sepulvado v. G-Rock Climbing, LLC, 55,637 (La. App. 2 Cir.
5/22/24), 387 So. 3d 870, writ denied, 24-00800 (La. 10/15/24), 394 So. 3d
818. A material fact is one that potentially ensures or precludes recovery,
affects the ultimate success of the litigant, or determines the outcome of the
dispute. Because it is the applicable substantive law that determines
materiality, whether a particular fact in dispute is material for summary
judgment purposes can be seen only in light of the substantive law
applicable to the case. Jackson v. City of New Orleans, 12-2742 (La.
1/28/14), 144 So. 3d 876; Richard v. Hall, 03-1488 (La. 4/23/04), 874 So. 2d
131; Sepulvado on Behalf of Sepulvado, supra.
Assignments of Error 1 and 2:
The Franklins assign as errors the trial court’s denial of an oral motion
to strike Ms. Echols’s affidavit as well as the use of the alleged defective
affidavit in its decision to grant BellSouth’s motion for summary judgment.
As it relates to Ms. Echols’s affidavit, the Franklins urge that the affidavit
contains hearsay, it lacks personal knowledge, and it fails to set forth facts
that would be admissible. More specifically, the Franklins assert that Ms.
Echols stated in her affidavit that she was “familiar with” and “aware of” the
case. Furthermore, the Franklins also suggest that although she stated she
reviewed the accounts and property records involved with this matter, Ms.
Echols admitted she was not personally present on the day the matter
occurred, and she did not personally prepare the records. The Franklins
argue that the affidavit is defective and should not have been considered in
support of the motion for summary judgment.
7
In reply, BellSouth notes that the Franklins failed to file a written
motion to strike but instead orally requested that the trial court strike the
Echols affidavit. Despite the Franklins’ claims, BellSouth urges that Ms.
Echols expressly stated her personal knowledge and familiarity with the
facts, and she is the Associate Director of Network Services whose
responsibilities include the very issue involved in this matter. In light of
these reasons, BellSouth asserts that the trial court’s evidentiary ruling was
within its discretion, and it properly considered the affidavit when ruling on
the motion for summary judgment.
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify to the
matters stated therein. La. C.C.P. art. 967(A). Under La. C.C.P. art.
966(D)(2), “[a]ny objection to a document shall be raised in a timely filed
opposition or reply memorandum.” Comment (k) of the Revision
Comments 2015 to Article 966 states that “[t]his provision changes prior law
by specifically removing the motion to strike as a means of raising an
objection to a document offered by an adverse party in support of or in
opposition to a motion for summary judgment and does not allow a party to
file that motion.” The intent of La. C.C.P. art. 966(D)(2) was to make it
mandatory that any objection to a document filed in support of or in
opposition to a motion for summary judgment must be objected to in a
timely filed opposition or reply memorandum and not in a “motion to strike”
or other pleadings. Ramus v. KCJS Trucking, LLC, 19-0039 (La. App. 1 Cir.
9/27/19), 287 So. 3d 728. Comment (k) also highlights that La. C.C.P. art.
966(D)(2) “makes explicit that an oral objection to any document cannot be
8
raised at the hearing on the motion for summary judgment and that a court
must consider all documents to which there is no objection.”
In the Franklins’ reply memorandum opposing BellSouth’s summary
judgment motion, the Franklins included its objections to the Echols
affidavit, stating that the affidavit contained hearsay, lacked personal
knowledge, and failed to set forth facts that would be admissible in
evidence. This inclusion of the objection to the affidavit in the timely filed
reply memorandum served as the proper method to object to the Echols
affidavit. Aldridge v. Greenbrier Hosp., 23-0526 (La. App. 1 Cir. 3/13/24),
385 So. 3d 712, writs denied, 24-00480, 24-00484, 24-00492 (La. 9/17/24),
392 So. 3d 633, 634, 635. Consequently, the Franklins’ oral motion to strike
at the summary judgment hearing was unwarranted, and BellSouth’s
arguments that the motion to strike had to be in writing to be considered
proper are incorrect and contrary to the law regarding objections made to
documents in summary judgment proceedings.
Notwithstanding the oral motion to strike, the trial court properly dealt
with the Echols affidavit. The court recognized that Ms. Echols, as the
Associate Director of Network Services in Northwest Louisiana for
AT&T/BellSouth, was a qualified affiant who clearly stated her personal
knowledge of and familiarity with the situation regarding the Franklins. As
a result, the trial court did not err in either allowing BellSouth’s use of the
affidavit or its own consideration of the affidavit when ruling on BellSouth’s
motion for summary judgment. Therefore, the Franklins’ first and second
assignments of error are without merit.
9
Assignment of Error 3:
In their third assignment of error, the Franklins claim that BellSouth’s
utility easement was allegedly closed and abandoned, which creates a
genuine issue of material fact as to the validity of the utility easement. The
Franklins suggest that the StoneBridge Subdivision plat dated December 15,
1998, shows genuine issues of material fact as to whether BellSouth had a
utility easement because the plat reflects that the easement is closed and
abandoned. However, BellSouth asserts that the Franklins have misread the
recorded plat, noting that it depicts two different easements: (1) an older
easement running between the properties marked “closed and abandoned”;
and (2) a separate ten-foot utility easement which is where BellSouth’s
pedestal is located. This second easement, according to BellSouth, is not
marked closed and abandoned. Instead, urges BellSouth, the evidence
establishes that it maintained an active pedestal within the easement and
regularly dispatched technicians to service it.
The personal servitude of right of use confers in favor of a person a
specified use of an estate less than full enjoyment. La. C.C. art. 639. A
right of use includes the rights contemplated or necessary to enjoyment at
the time of its creation as well as rights that may later become necessary,
provided that a greater burden is not imposed on the property unless
otherwise stipulated in the title. La. C.C. art. 642. A right of use is
regulated by application of the rules governing usufruct and predial
servitudes to the extent that their application is compatible with the rules
governing a right of use servitude. La. C.C. art. 645. Nonuse for ten years
extinguishes predial servitudes. La. C.C. art. 753.
10
The StoneBridge Subdivision Phase 1, Unit 1-A plat recorded on
December 15, 1998, shows two easements: (1) a ten-foot utility easement
designated as “closed & abandoned”; and (2) an “existing” ten-foot utility
easement. Despite the Franklins’ protests that the utility easement is closed
and abandoned, the recorded StoneBridge plat clearly shows that there is an
“existing” ten-foot utility easement, and that it is this existing easement that
is used by BellSouth to maintain its pedestal, not the easement labeled
“closed & abandoned.” Instead of producing factual support to establish the
existence of a genuine issue of material fact, the Franklins simply continued
to assert that the easement was labeled closed and abandoned. While we
agree there is a ten-foot easement labeled closed and abandoned on the plat,
what is also apparent is that the plat depicts an existing ten-foot utility
easement available to BellSouth, and that it was this existing easement
which was used by BellSouth in the maintenance of its equipment. Any
further claims made by the Franklins related to the prescription of nonuse
were not properly raised before the trial court nor are they relevant as the
Franklins’ arguments address the “closed and abandoned” easement, an
easement that is not at issue. For these reasons, the Franklins’ third
assignment of error lacks merit.
Assignment of Error 4:
Finally, the Franklins argue that summary judgment was not
appropriate because there are genuine issues of material fact related to
whether BellSouth trespassed on the Franklins’ property. BellSouth
maintains that it had no dispatch records showing the presence of a
BellSouth employee on the property on April 27, 2022. Despite an absence
of documentation of BellSouth’s presence on that date, according to
11
BellSouth, even if it had been present on that date, BellSouth urges that it
had a valid, recorded utility easement authorizing its presence. BellSouth
points out that the burden shifted to the Franklins to produce evidence of a
genuine issue of material fact, but they failed to do so. Ultimately,
BellSouth claims that the events of April 27, 2022, involve a property line
dispute between the Franklins and the Wares that led to police involvement,
and BellSouth was not involved in this property line dispute.
By submitting Ms. Echols’ affidavit attesting to no BellSouth
employees being physically present on the Wares’ property on April 27,
2022, as well as the StoneBridge plat highlighting the existence of a valid
utility easement, BellSouth carried its burden in pointing out the absence of
factual support for the Franklins’ trespass claim. The burden then shifted to
the Franklins to produce factual support to create a genuine issue of material
fact. The Franklins included in their opposition to the motion for summary
judgment one affidavit signed by both Carl and Hattie Franklin. The
affidavit contained restatements made in the petition, such as that BellSouth
entered the property without permission, and that BellSouth placed an
internet box and lines on their property. They also stated that BellSouth did
not obtain written consent nor did the Franklins receive compensation from
BellSouth before BellSouth entered their property. Other than conclusory
statements, the Franklins introduced no evidence creating a genuine issue of
material fact. As set forth above, BellSouth was within its right to use the
valid, existing ten-foot utility easement. BellSouth’s entry on the land
12
within the utility easement is not a trespass.2 Furthermore, BellSouth has no
record of any employees being dispatched to this particular location in the
StoneBridge subdivision on April 27, 2022. We agree with BellSouth’s
categorization of the Franklins’ claim as one seeking damages arising out of
an alleged false arrest. As noted by BellSouth, there is no connection
between the events of April 27, 2022, and BellSouth. Consequently, the
Franklins’ final assignment of error is without merit.
CONCLUSION
For the reasons set forth above, the judgment of the trial court
granting summary judgment in favor of the defendant, BellSouth
Telecommunications, LLC d/b/a AT&T Louisiana, is affirmed. Costs of this
appeal are assessed to the plaintiffs, Carl and Hattie Franklin.
AFFIRMED.
2
The owner of the dominant estate has the right to enter with his workmen and equipment into the part of the servient estate that is needed for the construction or repair of works required for the use and preservation of the servitude. La. C.C. art. 754.
13