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800 Iberville Street Limited Partnership v. V Rest. Group, L.L.C.

Court of Appeals of Louisiana, Fourth Circuit

May 27, 2015

800 IBERVILLE STREET LIMITED PARTNERSHIP
v.
V RESTAURANT GROUP, L.L.C., ET AL

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2014-01908, DIVISION " L-6" . Honorable Kern A. Reese, Judge.

James Michael Garner, Ryan O. Luminais, Mary Elizabeth Akin, SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C., New Orleans, LA AND Thomas M. Beh, Gary J. Elkins, ELKINS, P.L.C., COUNSEL FOR PLAINTIFF/APPELLANT.

James A. Castex, Jr., Brian S. Schaps, DEUTSCH, KERRIGAN & STILES, L.L.P., New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.

(Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Rosemary Ledet).

OPINION

[2015-0065 La.App. 4 Cir. 1] Daniel L. Dysart, J.

800 Iberville Street Limited Partnership appeals a judgment of the trial court denying it an application for preliminary injunction seeking to enjoin its tenant, V Restaurant Group, LLC, and Vanna Ly, from violating the New Orleans Sound Ordinance. For the reasons that follow, we affirm the trial court's judgment.

BACKGROUND:

800 Iberville Street Limited Partnership (" Appellant" ), subleases a portion of the ground floor of a building located at 821 Iberville Street in New Orleans to V Restaurant Group, LLC, and Vanna Ly (" Appellees" ). Appellees operate the V

Page 1017

Sushi & Martini Restaurant and Bar. The upper four floors of the building are sublet as residential apartments.

Early in 2014, Appellant notified Appellees that they were in default pursuant to several conditions of the sublease. One of the conditions which Appellant claimed Appellees had violated was having live entertainment, a violation for which the City also cited Appellees. Following the citation by the [2015-0065 La.App. 4 Cir. 2] City, Appellant notified Appellees of a further default of the sublease for exceeding the permissible noise levels under the New Orleans Noise Ordinance.

Appellant filed suit in February of 2014 against the restaurant and its owner, Vanna Ly, who guaranteed the restaurant's obligations pursuant to the sublease, for eviction and for damages for breach of the lease.

[2015-0065 La.App. 4 Cir. 3] In June of 2014, the parties entered into a consent judgment by which they agreed to hire an acoustical expert to measure the level of noise created in the restaurant/entertainment club. The expert, once hired, also measured the noise level in the residential apartments and other parts of the building.

The expert's report, which was based on mock-up tests, concluded that the sound levels " exceed the L10 of 45 dBA nighttime sound level limit contained in Table 1 of the New Orleans Noise Ordinance for multi-family dwellings." [1 ...


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