AN ERNY GIRL, L.L.C.
BCNO 4 L.L.C., ET AL
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-00966,
DIVISION "C" Honorable Sidney H. Cates, Judge
P. Vicknair Brad P. Scott Kassie L. Richbourg SCOTT VICKNAIR
HAIR & CHECKI, LLC COUNSEL FOR
PLAINTIFF/APPELLEE/DEFENDANT-IN-RECONVENTION, AN ERNY GIRL,
Christy L. McMannen F. Sherman Boughton, Jr. CHRISTOVICH
& KEARNEY, LLP COUNSEL FOR
DEFENDANT/APPELLANT/PLAINTIFF-IN-RECONVENTION, BCNO 4, LLC
composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge
Tiffany G. Chase
F. Love Judge
appeal derives from disputes regarding the commercial lease
of property used for an art market in New Orleans. The lessor
successfully evicted the lessee, a limited liability company.
Subsequently, when the lessor attempted to deposit past rent
checks, the bank refused to negotiate the checks, indicating
that the account was closed. The lessor filed a
reconventional demand alleging fraud, conversion, and
criminal conduct on the part of the limited liability company
and the member/manager. The lessee limited liability company
and its member/manager filed exceptions of no cause of action
and vagueness. The trial court granted the exceptions as it
relates to the member/manager in her individual
lessor appeals contending that the trial court erred by
granting the exceptions, or, at the very least, should have
permitted it a chance to amend its reconventional demand to
cure the defects. We find that the trial court correctly
sustained the exception of no cause of action. However, the
trial court abused its discretion by not allowing the lessor
to amend the reconventional demand. This matter is remanded
to the trial court to afford the lessor the opportunity to
amend within the time provided by the trial court.
BACKGROUND AND PROCEDURAL HISTORY
Girl, L.L.C. ("Erny") leased the premises located
at 619 Frenchman Street in New Orleans to operate the
Frenchmen Art Market from BCNO 4, L.L.C. ("BCNO").
After operating the Frenchmen Art Market for a time, BCNO
sought to evict Erny from the premises. The facts surrounding
BCNO's eviction of Erny were summarized by this Court as
On 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
In the 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
On the 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).
By 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,
In its 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 [sic], "a declaratory
judgment be issued, stating that the Lease expired on
February 12, 2016." Additionally, BCNO 4 gave Erny Girl
notice to vacate.
Thereafter, 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.
On July 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.
In 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.
On 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' [sic] 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, 2016.6
this judgment, Erny Girl filed a suspensive appeal. An
Erny Girl, L.L.C. v. BCNO 4 L.L.C., 16-1011, pp. 1-5
(La.App. 4 Cir. 3/30/17), 216 So.3d 833, 835-37,
reh'g denied (Apr. 18, 2017), writ
denied, 17-0815 (La. 6/29/17), 222 So.3d 48 (footnotes
omitted). This Court converted the suspensive appeal to a
devolutive appeal and affirmed the judgment of the trial
court, upholding Erny's eviction. Id., 16-1011,
p. 18, 216 So.3d at 844.
the denial of writs by the Louisiana Supreme Court, on July
13, 2017, BCNO attempted to deposit eight rent checks written
by Katherine Erny Gaar, the member/manager of Erny, for rents
due from February 2016 - October 2016. However, the bank
returned the checks, as Erny's account was closed.
Subsequently, BCNO filed a Supplemental Reconventional Demand
("Demand") against Ms. Gaar, as the member and
manager of Erny. The Supplemental Reconventional Demand
sought $43, 940 in past rent and $96 for check fees charged
by the bank.
Gaar and Erny filed exceptions of no cause of action and
vagueness, asserting that the checks were legally stale by
July 13, 2017, when BCNO attempted to negotiate
them. The trial court granted the exceptions of
vagueness and no cause of action as to Ms. Gaar, and
dismissed her without prejudice. BCNO's devolutive appeal
of no cause of action present legal questions, which are
reviewed using the de novo standard of review."
O'Dwyer v. Edwards, 08-1492, p. 3 (La.App. 4
Cir. 6/10/09), 15 So.3d 308, 310.
the district court's judgment on an exception of
vagueness is based on a factual determination, an appellate
court reviews the district court's judgment under the
manifest error standard of review." Frankowski v.