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Lobell v. Rosenberg Denn

Court of Appeals of Louisiana, Fourth Circuit

December 19, 2018

KENNETH H. LOBELL
v.
CINDY ANN ROSENBERG DENN, ET AL

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2008-03338, DIVISION "C" Honorable Sidney H. Cates, Judge

          Roderick R. Alvendia ALVENDIA KELLY & DEMAREST, L.L.C.

          Matthew L. Pepper LAW FIRM OF WONDERLY & PEPPER COUNSEL FOR PLAINTIFFS/APPELLEES

          Harry Rosenberg PHELPS DUNBAR, L.L.P.

          Brian D. Katz Herbert A. Cade HERMAN HERMAN & KATZ, L.L.C. COUNSEL FOR DEFENDANTS/APPELLANTS/PLAINTIFFS IN RECONVENTION

          Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Dale N. Atkins

          DANIEL L. DYSART JUDGE

          Defendants-appellants, Cindy Rosenberg Denn, Craig Rosenberg, Ricky Rosenberg, Harry Rosenberg, Lenore Rosenberg Bramblett, Ann Rosenberg Silberman, Carla Rosenberg Waggoner, Paige Rosenberg Hirschkop, Rosalie Rosenberg Samuelson, and Larry Rosenberg, and 2025 Canal Street, L.L.C.[1](hereafter, collectively, the "Rosenbergs"), appeal a March 23, 2018 judgment which denied several of the Rosenbergs' post-trial motions. A full recitation of the pertinent facts and procedural history related to this litigation, arising out of a lease of property located at 2025 Canal Street, New Orleans, Louisiana, is set forth in the companion case of Kenneth H. Lobell, et al. v. Cindy Ann Rosenberg, et al.," 2018-CA-0559 (La.App. 4 Cir. --/--/----), also handed down this date.[2]

         In the companion case, this Court found that an August 22, 2013 judgment was final in its entirety and found no error in the trial court's denial of Lobell's motion to amend the judgment. The August 22, 2013 judgment found that the lease at issue was terminated as of April 30, 2013, and awarded, inter alia, past-due rent and ad valorem property taxes through that date.[3]

         This appeal concerns the Rosenbergs' Motion to Assess Payment of Post-Trial Unpaid Rent, Unpaid Taxes, Unpaid Insurance and Interest Thereon (hereafter referred to as the "Motion"). In the Motion, the Rosenbergs sought a judgment awarding them rent, ad valorem taxes, insurance premiums, and judicial interest for the period between April 30, 2013 (the date on which the trial court found that the lease terminated) and June 7, 2016 (the date on which the trial court's August 22, 2013 judgment became final in its entirety based on the Louisiana Supreme Court's denial of Lobell's application for a writ of certiorari).[4]

         In their Motion, the Rosenbergs argued that, because Lobell suspensively appealed the August 22, 2013 judgment, the lease was effectively suspended until the judgment become final on June 7, 2016. During this time, Lobell paid no rent and the Rosenbergs were required to pay the property taxes and insurance on the property, sums the Rosenbergs claim Lobell owes them.

         A hearing on the Motion was held and by judgment dated March 23, 2018, the trial court denied the Motion in its entirety.[5] The Rosenbergs timely appealed that judgment.

          DISCUSSION

         The issue presented in this case is a novel one, and while the Rosenbergs list seven assignments of error, they all turn on a singular issue - whether, despite the judicial termination of a lease, a lessor is entitled to continued rent payments and to enforce other provisions of a lease when a suspensive appeal is taken of a judgment pertaining to the lease. The Rosenbergs cite no case law answering that specific question in the affirmative, but rather cite general jurisprudence regarding the enforcement of contracts and the effect of suspensive appeals. The gist of the Rosenberg's argument is that, because of the suspensive nature of the appeal, the August 22, 2013 judgment was suspended until June 7, 2016, the effect of which was to maintain Lobell's possession of the property to their exclusion. Accordingly, the ...


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