FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-02081,
DIVISION "L-6" Honorable Kern A. Reese, Judge
Matthew S. Almon Scott T. Whittaker ATTORNEYS AT LAW STONE
PIGMAN WALTHER WITTMANN L.L.C. COUNSEL FOR PLAINTIFF/APPELLEE
Preston L. Hayes Zachary R. Smith ATTORNEYS AT LAW CHEHARDY
SHERMAN WILLIAMS COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Roland L. Belsome, Judge Joy Cossich
Lobrano, Judge Regina Bartholomew-Woods, Judge Tiffany Chase,
Judge Dale Atkins)
Defendants West Centro, L.L.C. ("West Centro"), and
Joshua Bruno, appeal the district court's March 14, 2018
judgment granting a preliminary injunction in favor of
Appellee, Plaintiff Horizon River Restaurants, L.L.C
("Horizon"). For the reasons that follow, we
reverse the judgment of the district court.
to the petition, filed March 2, 2018, Appellee operates a
Pizza Hut franchise ("the business") in Gretna,
Louisiana, in a building leased from Appellant. Joshua Bruno
is a member and the manager of West Centro. Appellee entered
into the lease in October, 2013, and began operating the
business in December, 2013, after making improvements to the
building. Appellee operated the business without incident
until February, 2017, when West Centro sent a notice of
violation of the lease, indicating fines would be imposed for
overflowing trash in the building's dumpster. In
September, 2017, West Centro began sending Appellee demands
for past due rent and fines, despite a prior court order
directing Appellee to pay rent to the Jefferson Parish
Sheriff's Office ("Sheriff's Office")
pursuant to a garnishment judgment in an unrelated matter.
October 17, 2017, West Centro filed a petition to evict
Appellee based on failure to pay rent for the period during
which Appellee sent payments to the Sheriff's Office,
which was dismissed at a rule to show cause one week later.
West Centro continued to send notices of violations of the
lease terms with accompanying fines, eventually culminating
in a notice of default on December 1, 2017. Appellee's
petition also alleged West Centro and Mr. Bruno had defaulted
on certain of their obligations under the lease.
addition to other relief sought, Appellee sought injunctive
relief from West Centro's interference with its right to
peaceful possession of the premises. Specifically, Appellee
sought to end any "further wrongful eviction
efforts" and the imposition of additional fines or fees
not contemplated by the lease. Among other things, Appellee
submitted it would suffer irreparable harm in the form of
damage to its business relationship with Pizza Hut without
March 8, 2018, the district court conducted a hearing on
Appellee's request for a preliminary injunction. Prior to
the examination of any witnesses, the court entertained West
Centro's exception of no cause of action. West Centro
urged the court to grant the exception, arguing that
injunctive relief would be inappropriate to enjoin a legal
proceeding such as an eviction. The court denied the
exception, citing West Centro's demand for rent payments
paid during the period in which Appellee was under court
order to forward such payments to the Sheriff's Office.
Davidson, President of Horizon, was the only witness to
testify. He explained that the company invested over
three-hundred thousand dollars in building improvements. He
stated that he negotiated the lease with Mr. Bruno, and that
no provision existed permitting the imposition of fines for
violating the lease. He also explained the company's
payments of rent to the Sheriff's Office for September,
October, November, and a portion of December 2017, pursuant
to the aforementioned court order. According to Mr. Davidson,
on September 6, 2017, Horizon received a notice assessing
numerous fines and fees for supposed violations and late
payments. Mr. Bruno also told him the failure to pay rent -
despite the court order - put Horizon in default. As a
result, in October 2017, West Centro sent a notice of
eviction to Horizon, based on non-payment of rent. Horizon
incurred fees as a result of employing counsel, but was
ultimately successful in having the suit dismissed.
Nonetheless, Mr. Davidson asserted that the notices
persisted, not only with respect to non-payment of rent, but
for additional fees and fines. A December 1, 2017 letter was
also sent to Horizon, tallying the total amount of unpaid
monies, including rent payments that had been garnished by
the Sheriff's Office.
Davidson further discussed his concerns regarding
Horizon's business reputation with Pizza Hut. He
explained that Horizon has numerous locations in the New
Orleans area, and that it is seeking to open more. He added
that an eviction would cause Horizon to be in breach of
numerous contracts with its vendors, and thus impair its
ability to contract in the future. Eviction would further
result in a breach of its contract with Pizza Hut, which
would prevent them from opening any new franchises. Mr.
Davidson also noted that the damage to Horizon's
relationship with Pizza Hut, along with the long term nature
of the numerous contracts at risk, made it impossible to put
a dollar amount on the harm caused by West Centro and Mr.
Bruno's actions. Mr. Davidson confirmed that the instant
suit had been filed on March 2, 2018, and a temporary
restraining order entered enjoining Appellants from
interfering with Appellees' peaceful possession,
including pursuing "wrongful eviction efforts" and
attempting to impose fines and fees not contemplated by the
lease. On March 5, 2018, after entry of the temporary
restraining order, Horizon received a notice from
"Metrowide Apartments," a company with which
Horizon had no business relationship, and which was owned by
cross-examination, Mr. Davidson confirmed that no eviction
proceedings were pending against Horizon, nor had West Centro
or Mr. Bruno resorted to any self-help remedies. Mr. Davidson
also conceded that the receipt of notices did not, in fact,
hurt Horizon's reputation, but that an eviction
"would have a similar effect." He also acknowledged
that Horizon reimbursed West Centro for a city fine of
$487.50 in relation to its "grease bin," which was
apparently paid by Horizon because there was "some
question" as to who may have been responsible for paying
the fine. Mr. Davidson also acknowledged an email indicating
that some grease had been placed in a dumpster at the
building which had spilled into the parking lot. Regarding
the dumpster, however, Mr. Davidson testified he had told Mr.
Bruno and West Centro that the pick-ups were not frequent
enough, resulting in excess garbage piling up. Another
notice, from September 12, 2017, was discussed, which
addressed a "grease violation." However, Mr.
Davidson noted that no fine was assessed as a result.
redirect, Mr. Davidson denied ever placing grease in the
dumpster; in fact, when Horizon made its improvements, it had
installed a grease bin that a third party would occasionally
empty. He did acknowledge some grease spills; however, he
explained that as a result of landscaping by Mr. Bruno, it
became difficult for employees to access the grease bin.
court denied Appellant's exception and granted the
preliminary injunction, observing that Mr. Bruno had engaged
in "unsavory" practices in asserting Horizon was in
default as to its rental payments, which had been paid to the
Sheriff's Office pursuant to a court order. The court
explicitly stated the injunction would not prohibit an
eviction action. In relevant part, the written judgment
enjoined West Centro and Mr. Bruno "from taking any
actions to interfere with [Appellee's] peaceful
possession of its Leased Premises . . . ."
Centro briefs four assignments of error. In its first and
third assignments, West Centro argues the preliminary
injunction should not have been granted, as Appellee failed
to show the existence of irreparable harm. In its second
assignment of error, West Centro argues the district court
committed legal error in denying its exception of no cause of
action and in issuing an injunction to "enjoin an
eviction." In its fourth assignment, West Centro argues
the district court's injunction fails to specify in
reasonable detail the actions enjoined.
district court's grant of Appellee's preliminary
injunction and the denial of Appellant's exception of no
cause of action are interlocutory judgments. However,
"[a]n appeal may be taken as a matter of right from an
order or judgment relating to a preliminary or final
injunction." La. C.C.P. art. 3612. Furthermore,
"when a non-appealable issue is raised in conjunction
with appealable issues, the non-appealable issues may be
reviewed to achieve judicial economy and justice."
Riley v. Riley, 1994-2226, p. 2 (La.App. 4 Cir.
9/4/96), 680 So.2d 169, 171 (citing Martin v.
Martin, 1995-0466 (La.App. 4 Cir. 10/26/95), 663 So.2d
plaintiff seeking a preliminary injunction must make a prima
facie showing that it will suffer irreparable injury if the
motion for preliminary injunction is not granted and that it
will likely prevail on the merits of the case. Easterling
v. Estate of Miller, 2014-1354, p. 10 (La.App. 4 Cir.
12/23/15), 184 So.3d 222, 228. It is a "harsh, drastic
and extraordinary remedy and should only be issued if the
applicant is threatened with irreparable loss without
adequate remedy at law." Id., 2014-1354, p. 11,
184 So.3d at 229. "Irreparable injury is an injury or
loss that cannot be adequately compensated in money damages,
or is not susceptible to measurement by pecuniary
standards." Id. A showing of inconvenience
alone is not sufficient to establish irreparable harm.
reviewing the district court judgment as to injunctive
relief, we are guided by this Court's decision in
Mid-S. Plumbing, LLC v. Dev. Consortium-Shelly Arms,
LLC, 2012-1731, p. 10 (La.App. 4 Cir. 10/23/13), 126
So.3d 732, 739:
"The standard of review for a preliminary injunction is
whether the trial court abused its discretion in
ruling." Kern [v. Kern], 11-0915,
p. 6 [(La.App. 4. Cir. 2/29/12), ] 85 So.3d [778, ] 781.
"That broad standard is, of course, based upon a
conclusion that the trial court committed no error of law and
was not manifestly erroneous or clearly wrong in making a
factual finding that was necessary to the proper exercise of
its discretion." Yokum [v. Pat
O'Brien's Bar, Inc.], 12-0217, p. 7
[(La.App. 4. Cir. 8/15/12), ] 99 So.3d [74, ] 80. The trial
judge has great discretion to grant or deny the relief
requested at a hearing on a preliminary injunction.
Desire Narcotics Rehab. Ctr., Inc. v. State Dep't of
Health and Hospitals, 07-0390, p. 4 (La.App. 4 Cir.
10/17/07), 970 So.2d 17, 20. An abuse of discretion results
from a conclusion reached in an arbitrary or capricious
manner. Wise v. Bossier Parish Sch. Bd.,
02-1525, p. 6 (La.6/27/03), 851 So.2d 1090, 1094. ...