United States District Court, E.D. Louisiana
ORDER AND REASONS
MORGAN, UNITED STATES DISTRICT JUDGE
the Court is a motion in limine and supplemental
motion in limine filed by Plaintiff Malik &
Son's, LLC (“Plaintiff”). The motions are
opposed. For the following reasons, the motions
in limine are DENIED IN PART and GRANTED IN PART.
seeks to exclude evidence and testimony with respect to four
issues: (1) Circle K's claim that Plaintiff failed to
mitigate its damages, (2) Nancy Shirar's testimony
regarding what she would have done under different
circumstances, (3) Scott Dusang's testimony regarding
what he would have done under different circumstances, and
(4) Circle K's argument that a vice of consent existed.
The Court will address each in turn.
Mitigation of Damages
seeks to exclude evidence or testimony that it failed to
mitigate its damages. Circle K contends Plaintiff had a duty to
mitigate its damages under Louisiana Civil Code article 2002,
and evidence as to whether Plaintiff reasonably fulfilled
this duty is admissible.
parties cited Louisiana cases in support of their positions.
In fact, there is a split among the Louisiana courts of
appeal with respect to whether a lessor has the duty to
mitigate his or her damages under Louisiana Civil Code
article 2002 in the event of a lessee's
default. The Louisiana Supreme Court has not yet
ruled on this issue. The Court need not decide this issue as
Louisiana Civil Code article 1983, rather than article 2002,
is the basis of the Court's opinion.
Civil Code article 1983 provides the contract is the law
between the parties. “The Civil Code, while defining and
governing the relationship of the parties to a lease, still
leaves the parties free to contractually agree to alter or
deviate from all but the most fundamental provisions of the
Civil Code, which govern their lease
relationship.”“[T]he codal articles and statutes
defining the rights and obligations of lessors and lessees
are not prohibitory laws which are unalterable by contractual
agreement, but are simply intended to regulate the
relationship between the lessor and lessee when there is no
contractual stipulation imposed in the
lease.” The obligations imposed under the codal
articles and statutes dealing with lease may be waived or
altered by contractual agreement, as long as such agreement
does not affect the rights of others and is not contrary to
Court has found no Louisiana authority stating the rule of
article 2002 is a matter of public policy from which the
parties may not deviate. The Court finds the parties to a
lease are free to contract with respect to the parties'
rights and obligations in the event of default, and may
choose not to impose a duty on the lessor to mitigate its
damages. Such an agreement does not affect the rights of
others and is not contrary to public policy.
18.1 of the lease in this case provides the landlord may
exercise one of the following two remedies in the event of
the tenant's default:
18.1.1 Landlord may continue this Lease in full force and
effect, and the Lease will continue in effect as long as
Landlord does not terminate Tenant's right to possession,
and Landlord shall have the right to collect Base Rent,
Additional Rent or any other charges as they come due. During
the period Tenant is in default, Landlord can enter the
Leased Premises and relet them, or any part of them, to third
parties for Tenant's account. Reletting can be for a
period shorter or longer than the remaining Lease Term.
Tenant shall pay to Landlord the Base Rent, Additional Rent
or any other charges due hereunder as the obligation arises,
less all compensation Landlord receives from any reletting.
After Tenant's default and for as long as Landlord does
not terminate Tenant's right to possession of the Leased
Premises, Tenant's right to assign or sublet the Leased
Premises shall be preserved.
18.1.2 Landlord may terminate Tenant's right to
possession of the Leased Premises at any time. No act by
Landlord other than giving written notice to Tenant shall
terminate this Lease. Upon such termination, Landlord shall
be entitled to recover from Tenant the total amount of unpaid
Base Rent, Additional Rent and other charges due as of the
termination date, and a termination penalty equal to the
total Base Rent due for the remainder of the Lease Term or
the Base Rent due for six (6) months, whichever is less.
lease between Plaintiff and Circle K does not provide that
Plaintiff has an obligation to mitigate its damages in the
event of Circle K's default. Instead, the lease
provides the Plaintiff can relet the premises even
if it chooses not to terminate the lessee's right of
possession. The lease, however, does not state that the
Plaintiff must relet the premises or otherwise
mitigate its damages in the event of the lessee's
Court finds that the Plaintiff complied with its obligations
under the lease and that evidence of any failure to mitigate
damages would not be relevant. Accordingly, the motion in
limine with respect to evidence relating to
Plaintiff's effort to mitigate its damages is granted.