Opinion
No. 00-CA-1700.
January 30, 2001.
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT FOR THE PARISH OF JEFFERSON, NO. 519-541, DIVISION "H". KERNAN A. HAND, JUDGE.
ROBERT A. KUTCHER, For Plaintiff-Appellee, NICOLE S. TYGIER, PATRICIA D. TUNMER, Metairie, LA.
STEPHEN I. DWYER, For Defendant-Appellant, SUZANNE CAMBRE, SCOTT M. CULLEN, Metairie, LA.
(Panel composed of Judges Edward A. Dufresne, Jr., James L. Cannella and Patrick M. Schott, Pro Tempore)
This is a breach of contract action in which Kenner Plaza Shopping Center, LLC, defendant-appellant, appeals from an adverse 1.25 million dollar damage award, with interest and attorney fees, in favor of Premier Restaurants, Inc., plaintiff-appellee. Because the underlying liability of Kenner Plaza has not yet been determined, the damage award is without any basis, and we therefore must vacate it.
The peculiar procedural posture of this case arose as follows. Premier sued Kenner Plaza in 1998 on a contract of lease. The trial judge entered two partial summary judgments in favor of Premier on the issue of liability (one for breach of contract and one for specific performance) and certified both as appealable pursuant to La. Code Civ. Pro., Art. 1915(B)(1). Kenner Plaza appealed both judgments.
While the above appeals were pending in this court a trial on damages was held in the district court resulting in the judgment at issue in this appeal. That judgment was rendered on March 9, 2000, and this appeal was taken. Then, on August 29, 2000, this court set aside the two prior summary judgments regarding liability and remanded the case to the district court for a trial on that issue.
As matters now stand, the damage award at issue in the instant appeal has no underlying basis because the issue of liability is yet to be tried and determined. In this circumstance we must vacate the judgment imposing these damages as premature and remand the case for further proceedings.
VACATED AND REMANDED FOR FURTHER PROCEEDINGS .