Searching over 5,500,000 cases.

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.

Indulge Island Grill, L.L.C. v. Island Grill L.L.C.

Court of Appeals of Louisiana, Fourth Circuit

May 10, 2017


         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-02077, DIVISION "B" Honorable Regina H. Woods, Judge.

          Barry H. Grodsky Donald J. Miester, Jr. TAGGART MORTON, L.L.C. COUNSEL FOR PLAINTIFF/APPELLEE.


          (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Terrel J. Broussard, Pro Tempore).

          Rosemary Ledet Judge.

         This is 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 proceedings.


         On May 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.

         On 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.

         On 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.[1] 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 therein.

         Island 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."

         Indulge 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[2] and self-help rights are allowable under those circumstances."

         On 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 motion.[3]

         On 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, [4] $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 appeal followed.


         Although Island Grill asserts multiple assignments of error, we find one dispositive-whether the trial court erred in granting summary judgment.[5] "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 325, 328.

         Despite the legislative mandate in La. C.C.P. art. 966[6] 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.

         The 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, [7] 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 the premises."[8]

         Based 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 1213).

         Abandonment 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).[9] "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.

         In 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.

         Although 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.

         On 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.[10] 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 access."[11]

         Indulge 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.

         It is undisputed that Indulge did not follow the eviction procedures set forth in La. C.C.P. art. 4701[12] 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 ...

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.