INDULGE ISLAND GRILL, L.L.C.
ISLAND GRILL, L.L.C., ET AL.
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-02077,
DIVISION "B" Honorable Regina H. Woods, Judge.
H. Grodsky Donald J. Miester, Jr. TAGGART MORTON, L.L.C.
COUNSEL FOR PLAINTIFF/APPELLEE.
M.L. Bohannan Lauren Davey Rogers BOHANNAN & ASSOCIATES
COUNSEL FOR DEFENDANT/APPELLANT.
composed of Judge Edwin A. Lombard, Judge Rosemary Ledet,
Judge Terrel J. Broussard, Pro Tempore).
Rosemary Ledet Judge.
a lease dispute. From the trial court's judgment granting
the lessor's motion for summary judgment and denying the
lessee's motion for new trial, the lessee appeals. For
the reasons that follow, we reverse and remand for further
AND PROCEDURAL BACKGROUND
22, 2014, Indulge Island Grill, L.L.C. ("Indulge"),
the lessor, and Island Grill, L.L.C. ("Island
Grill"), the lessee, entered into a commercial lease
(the "Lease"). The leased space was located at 845
Carondelet Street in New Orleans, Louisiana (the "Leased
Premises"). The lease term was approximately three
years-from June 1, 2014 to May 31, 2017. Robert Lawson and
Ashley Juno signed the Lease as guarantors, binding
themselves with Island Grill for all amounts due; they also
signed a separate guaranty.
March 6, 2015, Indulge filed a "Petition for Lease
Obligations" against Island Grill, Mr. Lawson, and Ms.
Juno. In its petition, Indulge averred that Island Grill
breached the Lease by failing to pay the rent due-the rent
last paid was for the month of September 2014-and that Island
Grill had voluntarily vacated the Leased Premises. Indulge
further averred that it had made a diligent, good faith
effort to lease the Leased Premises to another party. As a
result of its efforts, Indulge averred that it entered into a
new lease of the Leased Premises commencing on February 6,
2015, and that the term of the new lease exceeded the term of
the Lease. Finally, Indulge averred that the net amount due
under the Lease-crediting the amounts paid by Island Grill
and the amounts to be paid under the new lease-was $133,
991.27 plus attorney's fees and costs.
April 13, 2015, Indulge filed a motion for preliminary
default; however, no default judgment was taken. On July 6,
2015, Island Grill filed an answer, generally denying the
averments of the petition, and a reconventional
demand. In its reconventional demand, Island Grill
asserted the following claims: illegal eviction, illegal
taking, and breach of contract. Island Grill averred the
following factual basis for its claims:
In November of 2014, the parties began having conversations
that ISLAND GRILL, L.L.C. was considering
selling the business. Indulge began acting aggressively and
threatening not to permit the sale without their direct
involvement. This interference was outside of the scope of
the lease agreement.
On or about December 4th, 2014, ROBERT
LAWSON appeared at the leased premise to find the
[sic] one or more of the windows boarded and the locks
changed. Upon inquiry with INDULGE, the
plaintiffs-in-rule were initially informed that there had
been an attempt to break into the property and that the
property had been boarded temporarily. They were later
informed that they no longer had access to the leased
premises, their files and or personal documents therein,
their stock therein, or any other inventory or property
Grill further averred that Indulge "conducted a
fraudulent misrepresentation of fact to [Island Grill] by not
initially telling them they were illegally evicted but
instead that someone had 'broken in' and that is why
the window was boarded."
answered the reconventional demand, generally denying the
averments in it. In its answer, Indulge specifically averred
that Island Grill "abandoned the property thereby
waiving [its] rights under and relating to the [L]ease."
It further averred that "the eviction action was proper
as a matter of law" and that "[l]essee abandoned
the property, notice was given and self-help rights are
allowable under those circumstances."
September 30, 2015, Indulge filed a motion for summary
judgment seeking a judgment for the net amount it alleged it
was due under the Lease and a dismissal with prejudice of
Island Grill's reconventional demand. On November 6,
2015, a hearing was held on the summary judgment motion.
Although served with notice of the hearing, Island
Grill's counsel failed to appear. Nor did Island Grill
file an opposition to the summary judgment
November 18, 2015, the trial court rendered a judgment
granting the summary judgment motion. On the principal
demand, the trial court awarded Indulge $118, 409.17 as the
net amount due under the Lease,  $1, 500.00 in attorney's
fees, and all costs of these proceedings with legal interest
from October 1, 2014. The trial court also dismissed Island
Grill's reconventional demand with prejudice. The trial
court denied Island Grill's motion for new trial. This
Island Grill asserts multiple assignments of error, we find
one dispositive-whether the trial court erred in granting
summary judgment. "A trial court's disposition of a
motion for summary judgment is reviewed using the de
novo standard of review 'under the same criteria
governing the trial court's consideration of whether
summary judgment is appropriate.'" Citron v.
Gentilly Carnival Club, Inc., 14-1096, p. 12 (La.App. 4
Cir. 4/15/15), 165 So.3d 304, 313 (quoting D'Angelo
v. Guarino, 10-1555, p. 3 (La.App. 4 Cir. 3/9/12), 88
So.3d 683, 686). To determine whether summary judgment is
appropriate, a reviewing court must resolve the following two
issues: (i) whether there is any genuine issue of material
fact; and (ii) whether the mover is entitled to judgment as a
matter of law. Citron, 14-1096 at pp. 12-13, 165
So.3d at 313; see also Williams v. Archer W. Constr.,
LLC, 16-0158, p. 3 (La.App. 4 Cir. 10/5/16), 203 So.3d
the legislative mandate in La. C.C.P. art. 966 that the summary
judgment procedure is favored, Louisiana jurisprudence has
recognized that "'any doubt as to a dispute
regarding a material issue of fact must be resolved against
granting the motion and in favor of a trial on the
merits.'" Jones v. Stewart, 16-0329, p. 8
(La.App. 4 Cir. 10/5/16), 203 So.3d 384, 389, writs
denied, 16-1962, 16-1967, 16-1968 (La. 12/16/16), 211
So.3d 1169 (quoting Bridgewater v. New Orleans Reg'l
Transit Auth., 15-0922, pp. 5-6 (La.App. 4 Cir. 3/9/16),
190 So.3d 408, 412, writ denied, 16-0632 (La.
5/20/16), 191 So.3d 1071). Louisiana jurisprudence also has
recognized that "summary judgment based on subjective
facts like intent is rarely appropriate." Fiveash v.
Pat O'Brien's Bar, Inc., 15-1230, p. 1 (La.App.
4 Cir. 9/14/16), 201 So.3d 912, 914. Likewise, "issues
that require the determination of reasonableness of acts and
conduct of parties under all facts and circumstances of the
case cannot ordinarily be disposed of by summary
judgment." Baldwin v. Bd. of Sup'rs for Univ. of
Louisiana Sys., 06-0961, p. 7 (La.App. 1 Cir. 5/4/07),
961 So.2d 418, 422.
determination of whether a fact is material turns on the
applicable substantive law. Smith v. Our Lady of the Lake
Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730,
751. The applicable substantive law in this case is the
exception to the rule against a landlord's use of
self-help in the eviction process when the lessee abandons
the leased premises. The abandonment exception, which
initially was a judicially crafted one, was codified in 1991
in La. C.C.P. art. 4731 B,  which provides, in part, that
"[a]fter the required notice has been given, the lessor
or owner, or agent thereof, may lawfully take possession of
the premises without further judicial process, upon a
reasonable belief that the lessee or occupant has abandoned
on the abandonment exception, the Louisiana Supreme Court has
recognized a lessor's limited right to engage in
"self-help" in the following scenario-"when
the lessee breaches the lease by abandoning the premises, the
lessor has the right to take possession of the premises as
agent for the lessee and to relet the premises to a third
party without canceling the lease or relieving the lessee of
his obligations under the lease contract." Richard
v. Broussard, 495 So.2d 1291, 1293 (La. 1986). When the
abandonment exception applies, the lessor is exempt
"from liability for failing to comply with the eviction
procedure before taking possession if the lessee
unjustifiably abandons the leased premises." Duhon
v. Briley, 12-1137, 12-1138, p. 5 (La.App. 4 Cir.
5/23/13), 117 So.3d 253, 258 (citing Girgis v. Macaluso
Realty Co., 00-753, p. 4 (La.App. 4 Cir. 1/31/01), 778
So.2d 1210, 1212-13); see also Pelleteri v. Caspian Group
Inc., 02-2141, 02-2142, p. 10 (La.App. 4 Cir. 7/2/03),
851 So.2d 1230, 1237. Conversely, "[w]hen a lessor is
not justified in believing that the leased premises are
abandoned, the use of self-help to retake the property
constitutes a trespass and wrongful seizure of the
lessee's property." Duhon, supra
(citing Girgis, 00-753 at pp. 4-5, 778 So.2d at
is a factual determination. Walters v. Greer, 31,
480, p. 8 (La.App. 2 Cir. 1/22/99), 726 So.2d 1094, 1098
(citing Preen v. LeRuth, 430 So.2d 825 (La.App. 5th
Cir. 1983)); Horacek v. Watson, 11-1345, p. 7
(La.App. 3 Cir. 3/7/12), 86 So.3d 766, 771. In making that
determination, the jurisprudence has applied a two-part test,
requiring proof of both "[i] an act of abandonment and
[ii] a specific intent to abandon." Powell v.
Cox, 92 So.2d 739, 742 (La.App. 2d Cir.
1957). "Indicia of abandonment include a
cessation of business activity or residential occupancy,
returning keys to the premises, and removal of equipment,
furnishings, or other movables from the premises." La.
C.C.P. art. 4731 B.
granting the motion for summary judgment, the trial court
orally reasoned as follows:
Based upon the affidavit, based upon the lease agreement,
based upon the Request for Admissions and the lack of an
opposition presented here, summary judgment is warranted.
There are no issues of material fact regarding whether or not
this particular tenant breached the lease and left the
business in disrepair to the point that the lessor needed to
clean it as well as needed to relet it to a new tenant, and
so the deficiency that I find in summary judgment is
warranted in the amount of $118, 409.17.
the trial court did not make an express finding of
abandonment, such a finding is implicit in the trial
court's judgment, awarding the net rent due under the
Lease on Indulge's principal demand and dismissing Island
Grill's reconventional demand for illegal eviction.
appeal, Island Grill contends that it was illegally evicted
and that the trial court improperly granted summary judgment.
It further contends that there is a conflict in the evidence
that Indulge presented in support of its motion regarding the
end of the Lease. In support, it cites the December 4 and 5,
2014 text message exchange been the parties (the "Text
Message Exchange"). Island Grill points out that the
Text Message Exchange reflects that its representative
appeared at the Leased Premises to find the windows boarded
and plywood over the door. Indulge's representative
responded that the property had been broken into and that was
why the windows and door were boarded. Indulge's
representative, however, never indicated, at that juncture,
that Island Grill had been evicted. Island Grill alleges that
it "was never given access to the property again, and
INDULGE confiscated (without legal authority) approximately
$30, 000 worth of inventory and equipment." Island Grill
contends that the Text Message Exchange demonstrates that
"there was no legal eviction but a 'lock out'
where the windows were barred and ISLAND GRILL was denied
counters that, contrary to Island Grill's contention,
there cannot be any "conflicting evidence" in this
case because Indulge was the only party that presented
evidence at the summary judgment hearing. Indulge further
counters that the "self-help" scenario the
Louisiana Supreme Court sanctioned in the Richard
case is precisely what occurred in this case-Island Grill
abandoned the premises; Indulge lawfully obtained possession;
the premises were relet; and a judgment was obtained by
Indulge for the remaining lease obligations.
undisputed that Indulge did not follow the eviction
procedures set forth in La. C.C.P. art. 4701 before
obtaining possession of the Leased Premises and entering into
a new lease with a third party on February 6, 2015. Thus, the
narrow issue presented here is whether Island Grill abandoned
the Leased Premises or Indulge unlawfully evicted Island
Grill. To provide a frame ...