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Turner v. Hoffoss

Court of Appeals of Louisiana, Second Circuit

June 26, 2019

JOHN S. TURNER, JR. Plaintiff-Appellee
v.
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

          RONALD 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.

          Before MOORE, STONE, and McCALLUM, JJ.

          McCALLUM, J.

         This 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."[1]

         John L. 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.

         The 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.

         Turner, 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.

         For the following reasons, we affirm the trial court.

         FACTS

         For 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.

         With 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 Agreement.

         Thereafter, 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.

         After 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.

         Southwest 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.

         Eventually, 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 settlement.

         The 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.

         Thereafter, 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.

         At the 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 sheriff's sale.

         Eight 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 us.

         DISCUSSION

         A 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.

         We 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.

         Previous Proceedings ...


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