AN ERNY GIRL, L.L.C.
BCNO 4 L.L.C. AND JOHN GREGORY FOX BCNO 4, L.L.C.
AN ERNY GIRL, L.L.C.
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-00966 C/W
2016-04130, DIVISION "C" Honorable Sidney H. Cates,
P. Vicknair Brad P. Scott SCOTT, SEVIN & VICKNAIR Ike
Spears SPEARS & SPEARS COUNSEL FOR PLAINTIFF/APPELLANT.
Christy L. McMannen Fred Sherman Boughton, Jr. CHRISTOVICH
& KEARNEY, LLP COUNSEL FOR DEFENDANT/APPELLEE.
composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet,
Judge Sandra Cabrina Jenkins
ROSEMARY LEDET JUDGE.
a commercial lease dispute. The parties are BCNO 4, L.L.C.
("BCNO 4"), the lessor, and An Erny Girl, L.L.C.
("Erny Girl"), the lessee. From the trial
court's judgment denying Erny Girl's declinatory
exception of lis pendens and granting the BCNO
4's petition for possession (eviction action),
Erny Girl appeals. For the reasons that follow, we affirm.
AND PROCEDURAL BACKGROUND
January 23, 2013, the parties entered into a commercial lease
agreement (the "Lease"). The leased premises were
located at 619 Frenchman Street in New Orleans, Louisiana;
Erny Girl leased the premises to operate the Frenchmen Art
January 28, 2016, Erny Girl filed a Petition for Damages,
Declaratory Judgment and Permanent Injunction (the
"Declaratory Action"), captioned "An Erny
Girl, L.L.C. v. BCNO 4 L.L.C. and John Gregory Fox,
" which was allotted to Division "C" of the
Orleans Parish Civil District Court ("CDC"). In its
Declaratory Action, Erny Girl requested, among other things,
a declaration that "the Lease is effective and
continuing through June 9, 2016, and that the defendant, BCNO
, is obligated and ordered to cease any and all attempts
to improperly terminate the lease and undermine Lessee's
Declaratory Action, Erny Girl alleged the following regarding
the term of the Lease:
• The Lease had an initial term of February 1, 2013
through January 31, 2014 (Section 2 of the Lease);
• Sometime after January 31, 2014, Erny Girl began
discussing a renewal option with BCNO 4; and around June 1,
2014, BCNO 4 and Erny Girl renewed the Lease for an
additional year, through June 1, 2015.
• Around February 25, 2015, BCNO 4 began to discuss and
negotiate with Erny Girl an additional renewal of the Lease
for a third term.
• On June 9, 2015, BCNO 4 and Erny Girl agreed to a
renewal option on the Lease, extending the Lease through June
same day it filed the Declaratory Action (January 28, 2016),
Erny Girl, by letter, attempted to exercise the renewal
option under the Lease and thereby extend the term of the
Lease to June 9, 2017. The letter stated that Erny Girl was
"electing to exercise its renewal option within Section
4 of the Lease, extending the term of the Lease through June
9, 2017." The renewal clause (Section 4 of the Lease),
however, provided that "Tenant shall have the option to
renew this lease thirty (30) days before the end of the
initial term." (Emphasis supplied).
letter dated February 15, 2016, BCNO 4 rejected Erny
Girl's attempted renewal of the Lease, stating:
[Erny Girl's] attempt to exercise the option to renew is
without effect. The lease had an initial term of one year,
expiring January 31, 2014 (See Section 2), with an option to
renew for an additional one year term expiring January 31,
2015 (See Section 4). Upon expiration of the renewal term on
January 31, 2015, the lease converted to month to month term.
On January 11, 2016, my client [BCNO 4] sent the lessee
written notice of lease termination, effective February 12,
answer to the Declaratory Judgment Action, BCNO 4 asserted
that the Lease was validly terminated as of February 12,
2016. BCNO 4 also filed a reconventional demand requesting,
among other thing, "a declaratory judgment be issued,
stating that the Lease expired on February 12, 2016."
Additionally, BCNO 4 gave Erny Girl notice to vacate.
BCNO 4 filed two petitions for possession (eviction actions).
Both actions were entitled "BCNO 4, L.L.C. v. An
Erny Girl;" both actions were filed in the same
case number and allotted to CDC Division "J." The
first action, which was filed on April 25, 2016, sought to
evict Erny Girl based on its failure to maintain all-risk
property insurance as required by the Lease (the "First
Eviction Action."). The second action, which was filed on
June 24, 2016, sought to evict Erny Girl based upon its
judicial admission in its Declaratory Action that the Lease
terminated on June 9, 2016 (the "Second Eviction
Action"). Although Erny Girl was served with the Second
Eviction Action on July 28, 2016, it failed to file an answer
to that action.
25, 2016, Erny Girl filed a declinatory exception of lis
pendens. On July 29, 2016, Erny Girl filed an unverified
answer to the First Eviction Action. The trial court, in
Division "J, " set a hearing on the lis
pendens exception for August 15, 2016.
opposing Erny Girl's lis pendens exception, BCNO
4 suggested that the trial court in Division
"J"-the division in which the eviction actions (the
later filed actions) were pending-transfer the eviction
actions to Division "C"-the division in which the
Declaratory Action was pending (the earlier filed action).
See La. Rules for District Courts, Rule 9.4 (b)
(providing that "all subsequent actions asserting the
same claim by the same parties . . . shall be transferred to
the division to which the first case filed was allotted,
whether or not the first case is still pending.").
Adopting the suggestion, the trial court in Division
"J" transferred the eviction actions to Division
"C" on August 1, 2016.
August 15, 2016, a hearing was held, in Division "C,
" on both BCNO 4's pending eviction
action and Erny Girl's lis pendens
exception. On August 17, 2016, the trial court
rendered judgment overruling Erny Girls' lis
pendens exception and granting BCNO 4's Second
Eviction Action. In its written reasons for judgment, the
trial court stated as follows:
After hearing argument, this Court overruled An Erny Girl,
L.L.C.'s Exceptions of Lis Pendens filed in response and
opposition to BCNO 4, L.L.C.'s two Petitions for
Possession of Premises, finding that lis pendens, La. C.C.P.
Art. 531, is inapplicable in this matter. An Erny Girl's
"Petition for Damages, Declaratory Judgment, And
Permanent Injunction" seeks a declaration from the Court
that the lease is effective through June 9, 2016. BCNO 4,
L.L.C.'s second "Petition for Possession of
Premises", filed June 24, 2016, seeks possession of the
premises based on the expiration of the lease on June 9,
2016, which An Erny Girl, L.L.C. judicially admitted in their
Petition. The Declaratory Judgment action does not assert any
right to possession past June 9, 2016.
From this judgment, Erny Girl filed a suspensive appeal.
addressing the merits of the appeal, we must first address
BCNO 4's motion to dismiss. In its motion to dismiss,
BCNO 4 does not argue that Erny Girl filed either its
petition for appeal or its appeal bond
untimely. Instead, BCNO 4 argues that Erny
Girl's appeal should be dismissed because it failed to
comply with the requirements set forth in La. C.C.P. art.
4735 for a suspensive appeal of a judgment of
eviction. BCNO 4 argues that Erny Girl's answer,
which was filed on July 29, 2016, was neither made under
oath, nor pleaded an affirmative defense entitling Erny Girl
to retain possession of the leased premises. Erny Girl
counters that BCNO 4's motion to dismiss fails to
acknowledge a stipulation between the parties that was
intended to preserve its suspensive appeal rights.
place Erny Girl's argument regarding the stipulation in
context, we provide a brief review of the procedural history
of this case. As noted earlier in this opinion, this case
originated as two separately filed actions, which were
allotted to two different divisions of CDC. After the
eviction actions were transferred to the same division as the
Declaratory Action, the trial court in that division held a
hearing on BCNO 4's pending eviction actions and Erny
Girl's lis pendens exception. At that hearing,
Erny Girl's counsel raised an issue regarding service