JOHN S. TURNER, JR. Plaintiff-Appellee
JOHN L. HOFFOSS, GAIL KINNAIRD HOFFOSS, WILLIAM K. HOFFOSS, DONNA SUMAN HOFFOSS, SELF SERVICE GAS, INC. AND D. I. FOODS, INC. Defendants-Appellants
Appealed from the Twenty-Sixth Judicial District Court for
the Parish of Webster, Louisiana Trial Court No. 62872
Honorable Jefferson Rowe Thompson, Judge.
HOFFOSS DEVALL, L.L.C. BY: DONALD WAYNE MCKNIGHT J. LEE
HOFFOSS, JR. CLAUDE P. DEVALL, JR. COUNSEL FOR APPELLANTS
DEGRAVELLES & PALMINTIER BY: MICHAEL CARTER PALMINTIER
J. MICIOTTO COUNSEL FOR THIRD PARTY APPELLEE, SOUTHWEST
GAMING OF LOUISIANA, LP
DAVIDSON SUMMERS, APLC BY: RANDALL STEPHEN DAVIDSON JULIA
ELIZABETH BLEWER GRANT ERNEST SUMMERS ANDREW D. MARTIN
COUNSEL FOR APPELLEE, JOHN S. TURNER, JR. AND COUNSEL FOR
THIRD PARTY APPELLEE, DIXIE INN JUNCTION, L.L.C.
MOORE, STONE, and McCALLUM, JJ.
case involves the construction and operation of a video poker
casino and truck stop. Entrepreneurship, as gambling, is
inherently fraught with risks. Those who have suffered severe
losses in pursuit of either endeavor may be worthy of
sympathy, but other important considerations are involved
here. At the core of this case is the finality and
effectiveness of judgments previously rendered. "Any
justice system must have adjudicators; to be effective, their
judgments must mean something with bindingness; and the
minimal bindingness is that, except in specified
circumstances, the disgruntled cannot undo a judgment in an
effort to change the outcome."
Hoffoss, Gail Kinnard Hoffoss, William K. Hoffoss, Donna
Suman Hoffoss, Self Service Gas, Inc. and D.I. Foods, Inc.
("Hoffoss Family") appeal the trial court's
grant of summary judgment in favor of John S. Turner
("Turner") and Dixie Inn Junction, L.L.C.
("Dixie"). Originally, Turner filed a petition for
executory process against the Hoffoss Family. Within their
answer, the Hoffoss Family included a reconventional demand
against Turner and Dixie. Thereafter, the trial court ruled
in favor of Turner, allowing the seizure and sheriff's
sale of the Hoffoss Family property at issue. The Hoffoss
Family did not appeal that decision and subsequently Turner
filed a motion for summary judgment to obtain a dismissal of
any remaining causes pled by the Hoffoss Family. The trial
court granted Turner's summary judgment and now the
Hoffoss Family appeals that decision.
Hoffoss Family argues that the trial court erred in granting
summary judgment because disputed material facts existed,
precluding the trial court from dismissing their case without
a full trial on the merits. They allege that material facts
were in dispute with regard to both their detrimental
reliance cause and their allegation that the relationship
between them and Turner was one of joint venture and not
creditor-debtor. To that point, the Hoffoss Family argues
that the trial court further erred in not considering the
arguments with respect to their joint venture claim and their
detrimental reliance cause.
as expected, agrees with the trial court's judgment.
Particular to the Hoffoss Family's joint venture
allegation, Turner argues that res judicata attached
to the previous determination by the trial court. The trial
court determined, in its prior judgment on the executory
process petition, that the relationship was one of
creditor-debtor. The Hoffoss Family failed to appeal that
decision, making it final. Furthermore, Turner contends that
the trial court could not have ordered the seizure and sale
of the Hoffoss Family property without such a finding.
Therefore, because the Hoffoss Family failed to appeal that
decision, the judgment became finale and res
judicata attached. Ergo, Turner asserts that the trial
court was correct to grant summary judgment because the
Hoffoss Family's claims rely solely on the argument that
something other than a creditor-debtor relationship existed
between the parties.
following reasons, we affirm the trial court.
many years, the Hoffoss Family owned and operated a
restaurant in Dixie Inn, Louisiana. The land, on which the
restaurant was built, was valuable due to its location
adjacent to Interstate 20, with ease of access at Exit 44. In
1998, the Hoffoss Family entered into an agreement with Nitro
Gaming and its principal, Harold Rosbottom
("Rosbottom"), to build and operate a casino and
truck stop on the property. In that agreement
("Rosbottom Agreement"), the Hoffoss Family would
provide their land and Nitro would provide $1.25 million to
construct the casino and truck stop. The profits from the
operation would be divided equally.
little to no progress on the casino and truck stop, the
Hoffoss Family then entered into a "Lease and Video
Poker Participation Agreement" ("VPPA") with
Southwest Gaming of Louisiana ("Southwest"). Under
the terms of the VPPA, the Hoffoss Family would again provide
their land and Southwest would fund the construction of the
casino and truck stop. Southwest, in turn, obtained funding
for the construction from Turner. It is important to note
that prior to this VPPA, the Hoffoss Family and Rosbottom had
yet to abandon, cancel or renounce the prior Rosbottom
Rosbottom sued the Hoffoss Family for breach of the Rosbottom
Agreement. They subsequently settled the matter. From that
settlement, two provisions of note were agreed upon by the
parties: (1) Rosbottom would receive 13.75% of the video
poker revenues for ten years and such would be deemed a
covenant or servitude running with the land; and (2) if
certain time deadlines for the construction of the casino and
truck stop, and the installation of poker machines were not
met, Rosbottom could seek specific performance of the
Rosbottom Agreement, allowing him to take control and
ownership of the project.
agreeing to the above compromise with Rosbottom, the Hoffoss
Family moved forward with the VPPA. In addition to
acknowledging the Rosbottom Agreement, the VPPA included
provisions that Southwest would provide funds or obtain
financing for the construction of the casino and truck stop.
contacted Turner, without objection from the Hoffoss Family.
Turner agreed to provide a portion of the funds, $400, 000,
for the construction of the casino and truck stop while
Southwest and the Hoffoss Family reached an agreement for a
loan from Regions Bank. Turner further funded a $125, 000
payment to Rosbottom that was a requirement of the prior
Rosbottom Agreement and settlement. Thereafter, construction
of the casino and truck stop began.
it became clear to Turner and the Hoffoss Family that
construction of the casino and truck stop, along with the
installation of the poker machines, would not be completed
prior to the Rosbottom Agreement deadlines. Part of the
problem was that Regions Bank declined to provide any loan
because the land in question was hampered by the 13.75%
covenant and servitude per the Rosbottom Agreement and
Hoffoss Family and Turner then entered into a mortgage
agreement titled "Mortgage to Secure Future
Advances" ("Mortgage Agreement") in order to
provide Turner with collateral to protect him as he became
the sole funding source of the project. However, after
spending $1.2 million on the project, and after construction
had slowed or halted, Turner filed a petition for executory
process in order to proceed with a sheriff's sale of the
Hoffoss Family property.
the Hoffoss Family answered Turner's petition for
executory process and included a reconventional demand.
Within their answer and demand, they filed a motion to enjoin
Turner's seizure and sale of the property in question.
They also sought damages against Turner and asked the trial
court for a declaratory judgment, seeking a judicial
determination of the rights of the parties under the
agreements at issue.
trial on the injunction in 2003, the trial court accepted and
considered copious amounts of testimony and evidence,
including the contracts and agreements in question. The trial
court found in favor of Turner, ordered the seizure of the
property and allowed the sheriff's sale to proceed. The
Hoffoss Family did not appeal the trial court's decision
with regard to the injunction or the seizure and sale. Turner
subsequently bought the Hoffoss Family property at the
years later, in 2011, the Hoffoss Family sought, through
discovery, any evidence with regard to the profits or revenue
from the casino and truck stop. When Turner did not comply,
the Hoffoss Family filed a motion to compel. The trial court
denied that motion. This Court denied a writ application on
the trial court's denial of the motion to compel. In an
attempt to finally bring this 15-year old case to a
conclusion, Turner filed a motion for summary judgment to end
all remaining litigation between the parties. The trial court
granted the summary judgment, resulting in the appeal before
motion for summary judgment is a procedural device used when
there is no genuine issue of material fact for all or part of
the relief prayed for by a litigant. A summary judgment is
reviewed on appeal de novo. Samaha v. Rau,
2007-1726 (La. 2/26/08), 977 So.2d 880; Wright v.
Louisiana Power & Light, 2006-1181 (La. 3/9/07), 951
So.2d 1058; King v. Parish National Bank, 2004-0337
(La. 10/19/04), 885 So.2d 540, 545; Jones v. Estate of
Santiago, 2003-1424 (La. 4/14/04), 870 So.2d 1002, 1006.
first identify two issues that are no longer before us for
consideration. First, the Hoffoss Family has stated in its
brief to this Court that "[they] have no objection to
Dixie Inn Junction being dismissed as a defendant."
Second, the Hoffoss Family previously argued that either
Turner or Dixie Inn Junction, or both, were assignees of the
contractual rights of Southwest. The Hoffoss family, however,
has abandoned that allegation. Therefore, we will not discuss
those two issues.