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An Erny Girl LLC v. Bcno 4 L.L.C.

Court of Appeals of Louisiana, Fourth Circuit

September 26, 2018


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-00966, DIVISION "C" Honorable Sidney H. Cates, Judge



          Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Tiffany G. Chase

          Terri F. Love Judge

         This 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 capacity.[1]

         The 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.


         An Erny 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 follows:

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 [4], is obligated and ordered to cease any and all attempts to improperly terminate the lease and undermine Lessee's peaceful possession."
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 9, 2016.
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, 2016.
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

         From 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.

         Following 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.

         Ms. 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.[2] 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 followed.


         "Exceptions 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.

         "Because 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. Frankowski, ...

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