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Horizon River Restaurants, LLC v. West Centro, LLC

Court of Appeals of Louisiana, Fourth Circuit

January 23, 2019


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-02081, DIVISION "L-6" Honorable Kern A. Reese, Judge



          (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods, Judge Tiffany Chase, Judge Dale Atkins)


         Appellants, 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.


         According to the petition, filed March 2, 2018, Appellee operates a Pizza Hut franchise ("the business") in Gretna, Louisiana, in a building leased from Appellant.[1] 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.

         On 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.

         In 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 such relief.[2]

         On 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.

         Scott 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.

         Mr. 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 Joshua Bruno.

         On 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.

         On 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.

         The 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 . . . ."

         West 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.


         The 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 519).

         A 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. Id.

         In 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], [20]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.], [20]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, [20]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., [20]02-1525, p. 6 (La.6/27/03), 851 So.2d 1090, 1094. ...

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