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Lapalco Village Joint Venture v. Pierce

Court of Appeals of Louisiana, Fifth Circuit

June 15, 2017

LAPALCO VILLAGE JOINT VENTURE
v.
WENDELL PIERCE, TROY A. HENRY, JAMES HATCHETT, STERLING FRESH FOODS, LLC AND ASI FEDERAL CREDIT UNION

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 747-075, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, LAPALCO VILLAGE JOINT VENTURE Jacob Kansas

          COUNSEL FOR DEFENDANT/APPELLEE, ASI FEDERAL CREDIT UNION Randy G. McKee Amelia D. Colomb

          Panel composed of Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst

         SJW

         FHW

         MEJ

          STEPHEN J. WINDHORST JUDGE

         Appellant, Lapalco Village Joint Venture ("Lapalco"), appeals the trial court's judgment granting summary judgment in favor of appellee, ASI Federal Credit Union ("ASI"), and dismissing Lapalco's claims against ASI with prejudice. For the reasons that follow, we reverse and remand for further proceedings.

         Facts and Procedural History

         On March 29, 2012, Sterling Fresh Foods, LLC ("Sterling") entered into a lease agreement with Lapalco for the lease of Lapalco's premises located at 5969 Lapalco Boulevard, in Marrero, for the purpose of operating a grocery store. The starting date of the lease was delayed until March 20, 2013. On May 2, 2014, Sterling employed or authorized PKK, Inc. to operate the grocery store on the leased premises in violation of the lease agreement. On June 6, 2014, Lapalco issued Sterling a notice of default, and on September 14, 2014, Lapalco issued Sterling a notice of lease termination. Sterling vacated the premises on November 19, 2014.

         On June 20, 2012, soon after Sterling and Lapalco executed the lease agreement, Sterling entered into a Business Credit and Continuing Security Agreement with ASI for the advance of funds. Sterling granted a security interest to ASI in all its inventory, general intangibles, instruments, letter-of-credit rights, deposit accounts, chattel paper, accounts, documents equipment, and fixtures located at 5969 Lapalco Boulevard. The security interest also included all business assets and was personally guaranteed by Wendell Pierce and Troy Henry. ASI recorded a UCC Financing Statement regarding the security interest agreement on July 30, 2012, in the UCC records of Jefferson Parish.

         On February 25, 2015, Lapalco filed suit against Wendell Pierce, Troy Henry, James Hackett, Sterling, and ASI.[1] Lapalco sought damages against Sterling for unpaid common area maintenance, taxes, insurance, and other sums due pursuant to the lease. Lapalco also sought damages against Sterling for improper removal, conversion, and/or sale of part of the leased premises, contending that Sterling wrongly removed a refrigeration and freezer unit. Lapalco contended that the units were immovable fixtures and/or alterations and improvements to an immovable fixture, and that Sterling was required to leave the units at the time of the expiration of the lease. Lapalco further sought damages against ASI, contending that ASI was "instrumental in and did participate in the removal/sale of said refrigerator/freezer units, did receive the funds from the sale of said units, and as such is responsible for the costs of replacing the units."

         On June 17, 2016, ASI filed a motion for summary judgment arguing that Lapalco was not in "contractual privity" with ASI, and that Lapalco's "rights to movable property, namely a refrigeration unit and freezer unit, are subordinate ...


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