SPECIALTY RETAILERS, INC.
RB RIVER IV LLC, ET AL.
FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. 2016-3347 HONORABLE KRISTIAN D. EARLES,
P. Pellegrin Phillip M. Smith Neuner Pate Counsel for
Plaintiff/Appellant: Specialty Retailers, Inc.
C. Abell, Jr., Craig A. Ryan, Emily Breaux, Counsel for
Defendants/Appellees: RB River IV LLC, RB River V LLC, RB
River VI LLC
Michael P. Bienvenu, Kinchen, Walker, Bienvenu, Bargas, Reed
& Helm, L.L.C., Counsel for Defendant/Appellee: Stirling
composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis
M. Keaty, Judges.
PHYLLIS M. KEATY JUDGE.
a commercial tenant, filed suit against its landlord and the
property manager to recover rent it allegedly overpaid. The
tenant and the landlord filed cross-motions for summary
judgment concerning interpretation of the "Additional
Rent" provision in the lease between them. The trial
court denied the tenant's motion for partial summary
judgment and granted summary judgment in favor of the
landlord, dismissing the tenant's claims against it. The
tenant appeals, and for the following reasons, we affirm.
AND PROCEDURAL HISTORY
facts are not in dispute. Plaintiff, Specialty Retailers,
Inc. (SRI or the tenant), entered into a ten-year Lease
Contract (the lease) with Weingarten Realty Investors (WRI)
in February 2003, regarding a portion of a retail shopping
center in Lafayette, Louisiana. Thereafter, SRI began
operating a Stage department store in the leased premises. In
May 2005, WRI transferred its interest in the shopping center
to RB River IV LLC, RB River V LLC, and RB River VI LLC
(collectively RBR or landlord). The lease called for SRI to
pay three types of rent: Minimum Rent,  Percentage Rent,
Additional Rent. In simple terms, the Additional Rent portion
of the lease required SRI to make monthly payments to cover
its proportionate share of the costs and expenses paid by the
landlord. The lease provided for a year-end reconciliation of
the monthly amounts paid by SRI against the actual amount
that the landlord incurred in costs and expenses during that
hired third-party auditor Green Back Cost Recovery (Green
Back) in 2014 to review the lease. Green Back concluded that
SRI had been paying more than it owed in Additional Rent
based upon its interpretation of a cap provision found in the
lease. Thereafter, SRI sent several demand letters in
accordance with the Louisiana Open Account Law to Stirling
Properties, L.L.C. (Stirling), property manager of the
shopping center, seeking a refund of the amounts it had
allegedly overpaid. When its demands went unanswered, SRI
filed suit against RBR and Stirling (hereafter collectively
referred to as Defendants), alleging that they were guilty of
breach of contract and/or that they were liable to it on open
account and seeking damages of $213, 529.39.
Defendants answered the suit, SRI filed a motion for partial
summary judgment seeking to have the trial court declare as a
matter of law that Section 22.01(E) of the lease capped the
"actual CATI payments" owed by it to RBR. In
response, RBR filed a motion for summary judgment asserting
that the lease obligated SRI to "pay its proportionate
share of all Common Area Operating Costs, Taxes and Insurance
Premiums incurred on an annual basis and that Section
22.01(E) simply limit[ed] the monthly payment obligations
against those annual costs." Stirling filed a memorandum
in support of RBR's motion and against that filed by SRI.
Following a hearing, the trial court denied SRI's motion
for partial summary judgment and granted summary judgment in
favor of RBR, dismissing SRI's claims against it. SRI
timely appealed the ensuing judgment and is now before this
court assigning these errors:
1. In deciding that the annual cap on Tenant's Share of
CATI only applied to estimated monthly payments, the
district court erroneously interpreted the clear and
unambiguous language of Section 22.01(E) of the Lease
Contract, which expressly provides that Tenant's Share of
actual CATI may not increase by more than four
percent (4%) each year.
2. The district court's erroneous interpretation of the
Lease Contract renders Section 22.01(E) meaningless because,
without an annual cap on Tenant's share of
actual CATI, the additional rent would be
unpredictable and the reconciliation process found in Section
22.02 would be unnecessary.
3. To the extent the district court found the Lease Contract
to be ambiguous, the district court erroneously failed to
consider that the undisputed facts establish the intent of
the original parties to the Lease Contract to provide for an
annual cap on actual CATI (as evidenced by similar
contracts between SRI and WRI).