Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ivy Restaurant New Orleans, LLC v. Torre

Court of Appeals of Louisiana, Fourth Circuit

February 1, 2017

IVY RESTAURANT NEW ORLEANS, LLC, PATRICK SINGLEY, REBECCA SINGLEY, GAUTREAU'S ACQUISITION CORP., ALBERTA PATE AND JILL STOUTZ
v.
LEONARD A. TORRE AND REGINA V. TORRE

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-09422, DIVISION "G-11" Honorable Robin M. Giarrusso, Judge

         AFFIRMED

          Joseph M. Bruno Melissa A. Debarbieris BRUNO & BRUNO LLP COUNSEL FOR PLAINTIFF/APPELLANT, JILL STOUTZ.

          David K. Persons John E. Unsworth, Jr. HAILEY McNAMARA HALL LARMANN & PAPALE, L.L.P. AND R. Joshua Koch, Jr. KOCH AND SCHMIDT COUNSEL FOR DEFENDANTS/APPELLEES, LEONARD AND REGINA TORRE.

          Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Regina Bartholomew-Woods

          TERRI F. LOVE, JUDGE

         Defendants own commercial property that is leased to varying types of businesses. Plaintiffs are a group of former business owner lessors who filed suit against the defendants for allegedly concealing "a noisome odor" defect in the property that caused damages. The trial court dismissed appellant's delictual and contractual claims finding that the claims were prescribed. Appellant now appeals contending that defendants "fraudulently" concealed the defect and that the doctrine of contra non valentem applies. Allegations of fraud did not prevent prescription from tolling because a reasonable person exercising reasonable diligence would have known of the cause of action. Likewise, the doctrine of contra non valentem does not apply because appellant was aware of the facts surrounding her cause of action. The continuing tort is also inapplicable, as the alleged harmful acts ceased over ten years prior to the filing of the petition. The trial court did not commit manifest error by dismissing the claims. The judgment of the trial court is affirmed.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY[1]

         Leonard and Regina Torre (collectively "Torres") own the commercial property located at 5015 Magazine Street ("Property") in New Orleans. The Torres leased the Property to various small business owners. Around November 2002, Jill Stoutz leased the Property to operate a furniture store named Stowell & Stoutz. "Soon after opening" Stowell & Stoutz between November 2002 and November 2003, Ms. Stoutz "encountered an unpleasant odor that was not detected at the time she entered into a lease with" the Torres. Ms. Stoutz burned scented candles during business hours in attempt to hide the odor. The odor remained despite Ms. Stoutz's attempts at eradication. Ms. Stoutz informed the Torres. However, the Torres' claimed they had no knowledge of an odor and maintained that Ms. Stoutz was responsible for remedying the situation. Ms. Stoutz asserted that the odor or "pre-existing defect . . . made it impossible for plaintiff to maintain peaceable possession of the premises . . . Stoutz was forced to leave the Premises and relocate her business" around November 2003.

         In 2004, Alberta Pate leased the Property and renovated it in order to operate a restaurant. During the renovation, Ms. Pate added a kitchen and a second bathroom to the Property. After opening the restaurant in October 2005, Ms. Pate noticed an odor with an undeterminable origin. Ms. Pate stated that "the smell interfered with . . . normal business operations and the restaurant was forced to close for the evening on several occasions." Ms. Pate also alleged that customers would leave after being seated because of the odor. In 2007, Ms. Pate contends that the odor forced the closure of the restaurant.

         Kevin Vizard leased the Property from 2008 to 2012 for the operation of Vizard's on the Avenue. The odor in the Property allegedly "had a negative effect on Vizard's business and, along with its concealment by the Defendant, resulted in Vizard's restaurant ceasing operations prior to the end of the lease term."

         In March 2013, Ivy Restaurant of New Orleans, LLC[2] ("Ivy") leased the Property to operate a restaurant. During renovations, a neighbor complained of an odor emanating from the Property. Ivy's plumber "was unable to identify the source of the smell, but "raised the height of the evacuation pipes at the rear of the Property." After opening the restaurant, Ivy noticed an odor throughout the restaurant. Then, "[i]n or around early 2015, as a direct and proximate result of Defendants' failure to maintain and/or repair the pre-existing defect, Ivy was forced to close the restaurant."

         On October 1, 2015, Ivy; the Singleys; Gautreau's, Ms. Pate, and Ms. Stoutz (collectively "Plaintiffs") filed a Petition for Damages against the Torres for concealing the defect of "a noisome odor" in the Property. The Torres filed exceptions of prescription, no cause of action, no right of action, improper cumulation, and improper joinder of parties. The trial court granted the Torres' exception of prescription regarding Ms. Stoutz's and Ms. Pate's delictual claims, as well as on Ms. Stoutz's contractual claims. The trial court also granted the Torres' exception of no right of action in regards to the Singleys and Gautreau. The trial court denied the Torres' exception of improper cumulation and/or joinder. The trial court's judgment resulted in the dismissal of all claims against the Torres except for Ms. Pate's contractual claims.

         Ms. Stoutz and Ms. Pate then filed a Notice of Intent to seek supervisory review of the trial court's judgment. This Court granted the writ in part to remand the matter for the trial court to consider the Notice of Intent as a Motion for Appeal. Ivy Restaurant New Orleans, LLC, et al. v. Leonard A. Torre and Regina V. Torre, 16-0377 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.