Opinion
2014 CA 0010
07-07-2015
TERREBONNE PARISH PORT COMMISSION v. EAGLE DRY DOCK & MARINE REPAIRS, L.L.C.
Daniel J. Walker Houma, LA Attorney for Plaintiff-Appellant Terrebonne Parish Port Commission Jerry L. Hermann Houma, LA Attorney for Defendant-Appellee Eagle Dry Dock & Marine Repairs, L.L.C.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 32nd Judicial District Court Parish of Terrebonne, State of Louisiana
Docket No. 167,552, Division "E"
Honorable Randall L. Bethancourt, Judge Presiding
Daniel J. Walker
Houma, LA
Attorney for
Plaintiff-Appellant
Terrebonne Parish
Port Commission
Jerry L. Hermann
Houma, LA
Attorney for
Defendant-Appellee
Eagle Dry Dock &
Marine Repairs, L.L.C.
BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
The Terrebonne Parish Port Commission (Port) appeals a trial court judgment dismissing its suit for eviction against its lessee, Eagle Dry Dock & Marine Repairs, LLC (Eagle). Eagle has filed a motion to dismiss the Port's appeal as premature and has also answered the appeal seeking additional attorney fees. For the reasons that follow, we deny Eagle's motion to dismiss, affirm the trial court judgment, grant the answer to the appeal, and award Eagle attorney fees incurred in defending the appeal.
Louisiana Revised Statute 34:2201A(1) specifically authorized the creation of the "Terrebonne Parish Port Commission." However, the plaintiff also refers to itself in the record as simply the Terrebonne Port Commission.
The defendant is also referred to in the record as "Eagle Drydock & Marine Repairs, LLC." The corporations database on the Louisiana Secretary of State's website indicates the actual name is "Eagle Dry-Dock & Marine Repairs, LLC."
FACTUAL AND PROCEDURAL HISTORY
The Port leased two parcels of industrial waterfront property to Eagle pursuant to a 2006 Lease agreement and a 2009 "Amendment and Restatement of Lease" agreement (hereinafter "Lease"). Under the terms of the Lease, Eagle was obligated to stabilize the "shoreline" by "bulkhead, rip rap, gobi-mats, or other means" approved by the Port within three years of Eagle's development of the waterfront. The Lease further provided:
In the event that ... default be made by LESSEE in the due observance and performance of any ... condition ... agreed by LESSEE to be by it observed and performed and such default continue for a period of thirty (30) days after written notice of default is given by LESSOR to LESSEE, LESSOR shall, on notice to LESSEE, have the right to (a) cancel this lease effective immediately or as of any date which LESSOR may select .... Any default (except as to payment of any rentals or any other sum due hereunder) shall be deemed cured if LESSEE in good faith commences performances requisite to cure same within thirty (30) days after notice of default is given ... and thereafter continuously and with reasonable diligence proceeds to complete the performance required to cure such default.
In May 2011, following a survey conducted on adjacent property, David Rabalais, Executive Director of the Port, wrote to Eagle about concerns regarding current and potential erosion on Eagle's leased property. In conjunction with this correspondence, the Port provided Eagle with a copy of an April 14, 2011 report (April 2011 Report) from GSE Associates, LLC (GSE), the Port's engineers, regarding Eagle's premises. Specifically, the April 2011 Report stated that if it was the Port's intent "to stabilize the bank [on the property] and prevent further erosion," then GSE recommended "building up the existing slope to a 3:1 [grade] by using ... limestone until the side slope meets a bottom slope that is less than 3:1." The April 2011 Report continued: "Once this grade is achieved, articulating concrete mats should be placed on the surface of the limestone. These mats shall be placed starting at the high bank elevation and continuing until the termination of the 3:1 slope."
Alternatively, the report provided that if the intent was "to reclaim lost property due to erosion and mechanical dredging," then a bulkhead would need to be installed.
Following negotiations between the Port and Eagle, it was agreed that Eagle would stabilize the shoreline with articulating concrete mats in conformance with the criteria set forth in the April 2011 Report. Consequently, on August 16, 2011, the parties executed a Supplement to the Lease. The Supplement provided, in pertinent part:
The Port's assertion, in the court below and on appeal, that the purpose for requiring Eagle to install the mats was to repair damage due to mechanical dredging rather than stabilize the shoreline conflicts with the express terms of both the Lease and the April 2011 Report.
1.
Upon the execution of this Supplemental Agreement[,] LESSEE will commence the application process for federal and state permits necessary for the construction-installation of an articulated concrete mat system ("MATS") .... Said permits must be obtained within six (6) months of execution of this agreement.
2.
Upon receipt of approved permits LESSEE shall commence construction-installation of the "MATS" on all waterfront property. LESSEE shall complete twenty-five (25%) percent of the MATS within six (6) months of the date of commencement and shall complete construction-installation of an additional twenty-five (25%) percent within each successive six (6) month period so that the entire
matting process will be completed within twenty-four (24) months from the date of commencement.
. . . .
5.
Plans for all construction-installation of "MATS" required herein shall be submitted to LESSOR for prior written approval of LESSOR'S engineers before commencement of any construction.
. . . .
8.
Any failure to meet the requirements of the construction-installation terms or conditions as set forth by the LESSOR'S engineer, or failure to meet any of the time requirements set forth herein including, but without limitation, the requirement related to the obtaining of permits, shall constitute a default of the LEASE and LESSOR will be free to take any appropriate action in accordance with law.
Prior to the execution of the Supplement, Ronald Chiasson, the President of Eagle, contacted T. Baker Smith, LLC, an engineering company, to compile the necessary information to begin the permit application process. The Supplement required that all permits be obtained by February 16, 2012. The permits from Terrebonne Parish and the State of Louisiana, Department of Natural Resources were obtained before the deadline; however, the Corps of Engineers (Corps) did not issue its permit until the beginning of May 2012. As soon as the Corps issued the permit, Eagle forwarded it to the Port.
After the Port engineers reviewed the permit drawings, Rabalais notified Chiasson that the drawings did not identify the slope and asked that Chiasson please "make sure that the design drawings include[d] a minimum slope of 3:1."
On April 9, 2012, Chiasson sent a copy of the April 2011 Report to numerous individuals at T. Baker Smith, including Kevin Rizzo, the engineer who would be creating the plans for Eagle. Chiasson instructed that the April 2011 Report "should serve as the guide to the drawings" for the project.
On May 2, 2012, Rizzo forwarded the completed "engineering drawings for the concrete mat installation" to Chiasson. Rizzo informed Chiasson that, based on the recommendations in the April 2011 Report, the plans showed the mats extending to the bottom of the channel, thus requiring two rows of mats instead of one. The following day, Chiasson questioned Rizzo regarding the April 2011 Report's use of an assumed average ground elevation rather than the actual elevation. Chiasson suggested that if the actual elevation were used, then only one row of mats would be needed. Rizzo replied that the permit provided for one row of mats and he informed Chiasson that he would revise the drawings to show only one row of mats from the existing ground elevation laid on a 3:1 slope, and allow the Port to comment.
As noted on the plans, the mats were to be 25 feet long, 4 feet wide, and 3 inches thick.
On May 15, 2012, Chiasson sent the following email to Rabalais:
If we are going to meet the schedule we need to start the project as soon as possible.... This would be a good time to begin preparing the bank for the mats. Are you okay with us starting?Shortly thereafter, Rabalais responded: "Do you have plans for us to review?" Chiasson then forwarded to Rabalais "the construction plans for the matt (sic) installation." Rabalais asked for a "few days to get the drawings reviewed and a report sent to [him] by the [P]ort's engineer."
By letter dated May 17, 2012, GSE informed Rabalais that it had reviewed Eagle's plans and agreed with the 3:1 minimum slope. However, the letter noted that the plans showed earthen borrow as fill below the waterline rather than limestone and that it had suggested that limestone be used in those areas requiring slope correction.
Rabalais forwarded GSE's letter regarding the "mat installation design" to Chiasson. Consequently, Chiasson had Rizzo produce revised drawings showing the use of limestone as fill. The revised drawings were sent to Rabalais on May 23, 2012 and he in turn forwarded them to GSE for review and comments. Rabalais specifically asked GSE to "check that the toe of the mats go far enough out from the bank."
After reviewing these revised plans, GSE sent a letter to Rabalais noting that they showed limestone as fill for slope correction below the waterline "as we had previously recommended." It continued: "From the drawings received, it is difficult to determine if the 3:1 slope continues until it meets an existing slope that is 3:1 or flatter." GSE also sent an email to Rabalais essentially conveying the same information. The email stated: "We have reviewed the sections submitted by [Eagle]. Our position is that the concrete mats should be placed on a slope of 3:1 until that slope terminates at a flatter slope. It is difficult to determine the slope on the drawings presented." The difficulty was purportedly due to the small scale of the drawings. On June 12, 2012, Rabalais forwarded GSE's email to Chiasson. However, in his email, Rabalais did not request that Chiasson provide plans of a different scale so that the slope could be more easily determined. Nor did he request any additional or more detailed plans. Instead, he wrote:
I sent your drawings to [GSE] for review and received [these comments.] Based on these comments , as long as the mats are placed on a 3:1 slope or greater and the mats extend out until the 3:1 slope terminates naturally to a flatter slope, we are okay with the design. (Emphasis added.)Based on this email, Eagle believed that it had received approval of its plans and that it could begin construction. In addition, Rizzo assured Chiasson that the plans provided the 3:1 slope and the limestone fill for slope adjustment that the Port desired. Consequently, in early July 2012, Eagle's contractor began forming the concrete mats on site, and this work was inspected daily by an employee of GSE.
On July 10, 2012, about the time that construction of the mats began, Rabalais sent a letter to Chiasson stating that prior to the installation of the mats on Port property, the Port would require that Eagle supply it with (1) a cross section map of the existing slope, (2) another cross section map made after the slope was adjusted with limestone, and (3) a design for the concrete mat itself. Then, on July 11, 2012, Rabalais emailed Chiasson stating that he needed "to verify that the concrete mats [were] designed and built properly." He asserted that Eagle's contractor was not cooperating in this and therefore, the Port was shutting down the project until the issue could be resolved.
In response to the July 10th letter and the July 11th email, Rabalais was immediately contacted by Eagle's attorney questioning on what authority the Port was requiring Eagle to obtain two additional cross sections " on a project that has already been approved by the Port and its engineer." (Emphasis added.) While the attorney acknowledged that the mat design was being provided, he complained to Rabalais that the Port could not "just arbitrarily and unilaterally keep insisting on additional engineering work on a project that has already been approved by everyone." (Emphasis added.)
On July 11, 2012, Chiasson sent a "mat form drawing" by email to a GSE employee.
In replying to the attorney, Rabalais did not contest the attorney's assertion that Eagle's plans had been approved, nor did he convey that the Port was expecting addition engineering work in the form of more detailed plans. Rather, Rabalais' email to the attorney stated as follows:
I went back and found the email I sent to [Chiasson] approving his design .... Since I did not ask him for a mat design he can proceed without submitting one but it would be a good gesture if he did submit a design for the file.
. . . .
As long as [Chiasson] backfills the slope deficient areas with aggregate as previously required he can continue. The [Port] will pay the cost of a final survey after the mats settle to ensure that the slope is at least a 3 on 1." (Emphasis added.)
The following day, Rabalais sent an email to Chiasson asking if Eagle would be willing to give up one of the lease properties if the Port had someone else that was interested in it. Chiasson responded that he would consider it. Then, Rabalais replied: "Just a thought, you may want to hold off on [installing] the mats on that section because most companies would prefer to bulkhead." However, the potential deal ultimately fell through.
Between July 11 and July 13, 2012, Eagle provided the Port with mat design drawings as well as the mix design for the concrete to be used in the mats, pursuant to the Port's request. And Eagle continued working on the project, having its contractor forming the necessary concrete mats on site. This work was performed by the contractor and inspected by a GSE employee on a regular basis.
On July 26, 2012, the Port's attorney sent Eagle a notice of default complaining that Eagle violated the Lease by refusing to allow the Port or its engineers to inspect the Lease premises. The letter warned that the alleged default would "result in litigation and termination of the Lease Agreement if not immediately remedied." When counsel for Eagle asked the Port's attorney to provide specific facts in support of his contention, no response was forthcoming. Apparently, there was no merit to the allegations in the notice of default, and the matter was not pursued.
Eagle continued work on the project, and the work continued to be inspected by an employee of GSE. On July 30 and July 31, 2012, GSE's inspector told Eagle's contractor where the limestone fill should go and took samples of the concrete.
On August 1, 2012, the Port's attorney sent another notice of default to Eagle claiming that Eagle had breached its obligation to timely obtain the necessary permits for the project. As previously noted, the parish and state permits were issued before the February 16, 2012 deadline set forth in the Supplement; however, the Corps did not issue its permit until the beginning of May. However, under the express terms of the Lease, the default had been cured months before the Port issued this notice. Nevertheless, the Port's attorney indicated that the Port's Board had not decided "what, if any action, [would] be taken in response to the default" but would advise Eagle of its decision. Chiasson felt that the Port was grasping for reasons to terminate Eagle's Lease and oust Eagle from the property.
On August 3, 2012, GSE sent a letter to Chiasson informing him that the concrete mats would have to be installed on a 3:1 slope all the way to "the channel bottom" and suggesting that one row of mats alone would be insufficient to accomplish this. When Chiasson forwarded the letter to T. Baker Smith, Rizzo responded by stating that T. Baker Smith had prepared both the permit and construction drawings in accordance with GSE's April 2011 Report and that he considered GSE's August 3, 2012 letter as stipulating an additional requirement. Specifically, Rizzo contended that the termination of the 3:1 slope was not necessarily at the channel bottom as was suggested in the letter. Rather, Rizzo contended that a single row of mats as shown on Eagle's plans would extend down the canal side slope beyond the termination of the 3:1 slope. Furthermore, Rizzo noted that the purpose of the project was to stabilize the bank and prevent further erosion as mentioned in the April 2011 Report. Rizzo explained to Chiasson that extending the mats to the channel bottom would not offer any additional protection against bank erosion.
On August 7, 2012, Eagle's contractor began installing the articulated concrete mats on the bank and the GSE's inspector reported that the "placement went well." And, on August 8, approximately one week before Eagle was required to have twenty-five percent (25%) of the mats installed, GSE sent a letter to Rabalais, acknowledging that installation of the mats had begun, and that its inspector had been monitoring the work in progress. Nevertheless, GSE stated that it wanted more detailed construction drawings on the project to make certain that the installation was being done correctly. And, although the permit application to the Corps had been forwarded to the Port in January 2012, and the actual permit issued by the Corps had been forwarded at the beginning of May 2012, GSE asserted for the first time that the permit Eagle had obtained from the Corps was inadequate, because it only showed the mats extending to "an area approximately twenty feet beyond the high-water mark." However, GSE contended that "recent cross-sections" it had taken indicated that "there may be areas beyond the placement of the present mats" where additional limestone and mats will be required. (Emphasis added.)
Based on this letter, the Port's attorney sent yet another notice of default to Eagle on August 9, 2012. This notice alleged two instances of default. First, the Port contended that Eagle had violated Section 5 of the Supplement by failing to submit plans for the construction and installation of the mats for prior written approval by GSE before commencement of any construction on the project. Secondly, the Port contended that Eagle had violated Section 1 of the Supplement by failing to obtain and provide the necessary state and federal permits for the project, because the permits that had been obtained limited the installation of the concrete mats to an area only twenty-five feet from the high-water mark toward the bottom of the waterway. The Port contended that cross-sections taken back in 2011 "clearly" indicated that the placement of the mats would need to be in excess of twenty-five feet in some areas. The Port then informed Eagle that further work on the project was not authorized until Eagle cured the alleged defaults.
There appears to be some discrepancies between the letter from GSE and the Port's notice of default, which attached and incorporated the letter from GSE. The apparent discrepancies include the cross-sections utilized, distances from the high-water mark, and whether additional mats "may" or would "clearly" need to be added.
Chiasson forwarded the letters to Rizzo at T. Baker Smith. Rizzo disputed the allegations made by the Port and GSE. He further responded that the April 2011 Report required three things: (1) a minimum slope of 3:1; (2) the side slope to be built up to 3:1 slope with limestone in areas where the slope was steeper than 3:1; and (3) the placement of concrete mats on the side slope until the slope became flatter than 3:1. Rizzo reassured Chiasson that Eagle's plans and permit satisfied all of these requirements. Therefore, believing that it was not in default, Eagle continued installing the mats in order to ensure that twenty-five percent (25%) of the project was completed before the August 16, 2012 deadline set forth in the Supplement.
On August 17, 2012, well before the time to cure the alleged defaults had run, the Port filed a "Petition for Dissolution of Lease Contract and for Injunction" alleging that Eagle was in default of two provisions of the Supplement as set forth in its August 9, 2012 notice of default. The Port sought to enjoin Eagle from further construction and/or installation of the mats, dissolution of the Lease, and damages.
On September 13, 2012, the Port sent Eagle written notice that it was cancelling the Lease effective immediately based upon the two alleged defaults set forth in the August 9, 2012 notice of default and Eagle's alleged failure to cure those defaults.
Pursuant to the terms of the Lease, Eagle prepaid its monthly rent. There is no indication in the record that the Port gave Eagle a pro-rated refund for the remainder of September 2012.
Eagle answered the Port's petition and reconvened, seeking attorney's fees and damages due to the Port's failure to maintain it in peaceable possession of the premises. The Port subsequently answered Eagle's reconventional demand and filed a Supplemental Petition for Dissolution of Lease Contract and for Eviction requesting that Eagle show cause via summary proceeding why it should not be ordered to deliver possession of the leased premises to the Port.
The hearing on the rule for eviction was conducted over four days in early 2013. Following the hearing, Eagle submitted proposed reasons for judgment that the trial court adopted as its own. In essence, the written reasons provided that no breach of the Lease occurred, and that even if there were a breach, the doctrine of judicial control precluded cancellation of the Lease. Accordingly, on May 3, 2013, the trial court signed a judgment dismissing the Port's "suit for eviction" with prejudice. From this judgment, the Port appeals. Eagle has filed an answer to the appeal asking that this court award it additional attorney fees for defending same. Eagle has also filed a motion to dismiss the appeal as premature.
Although the written reasons were drafted by counsel for one of the parties, if there is evidence in the record supporting those reasons, this court is not required to reject them. See Carrollton Presbyterian Church v. Presbytery of South Louisiana of Presbyterian Church, 14-1214 (La.App. 1 Cir. 3/9/15), ___ So.3d ___, ___, 2015 WL 1019492, *5.
MOTION TO DISMISS APPEAL
With regard to Eagle's motion to dismiss, another panel of this court made a preliminary determination to maintain the Port's appeal; however, a final determination of whether the appeal should be maintained was reserved for this panel in connection with our duty to review the merits of the appeal. Terrebonne Parish Port Commission v. Eagle Dry Dock & Marine Repairs, LLC, 14-0010 (La.App. 1 Cir. 6/16/14) (unpublished action). Thus, we now address the merits of Eagle's motion. Eagle contends that the judgment at issue did not address all of the parties' respective claims, and therefore, because the trial court did not designate it as a partial final judgment in accordance with La. C.C.P. art. 1915B, the instant appeal is premature. Based upon our review, we find Eagle's motion to be without merit.
In the instant matter, it is evident that the Port improperly cumulated claims that employed different forms of procedure. See La. C.C.P. art. 462. However, we note that Eagle did not file a dilatory exception raising the objection of improper cumulation, thereby waiving any such objection. See La. C.C.P. arts. 926 and 928A. However, notwithstanding this waiver, the trial court still had the discretion to try the summary eviction proceeding separately. See La. C.C.P. art. 465. See also La. C.C.P. art. 464-comment (d).
Clearly, the hearing conducted by the trial court was solely on the merits of the Port's summary eviction claim, and in its judgment, the trial court dismissed the Port's "suit for eviction" with prejudice. Therefore, we do not find the Port's appeal premature as a devolutive or suspensive appeal may be taken from a judgment in a summary eviction hearing. See La. C.C.P. art. 4735; Mitchell v. Earcetera, Inc., 450 So.2d 971, 972 (La.App. 1 Cir. 1984); Thomas v. Knight, 442 So.2d 750, 751 (La.App. 1 Cir. 1983).
Specifically, a summary proceeding for eviction involves the sole issue of whether the lessor is entitled to possession of the premises. Citizens Bank & Trust Co. v. Carr, 583 So.2d 864, 866 (La.App. 1 Cir.), writ denied, 588 So.2d 109 (La. 1991). Any claims for damages or arrearages must be asserted in a separate ordinary proceeding. See J & R Enterprises-Shreveport, L.L.C. v. Sarr, 43,364 (La.App. 2 Cir. 8/13/08), 989 So.2d 235, 239-40; see also Kingfish Development, L.L.C. v. Press It No. 1 New Orleans, LLC, 13-1113 (La.App. 4 Cir. 3/26/14), 135 So.3d 1232, 1234. Thus, eviction, like quo warranto or mandamus, is a summary proceeding in and of itself and does not present an incidental question arising in the course of other judicial proceedings. Therefore, a judgment either granting or denying eviction is appealable. Indeed, La. C.C. art. 4735 specifically sets forth the procedure for a lessee to suspensively appeal a judgment granting eviction. The implication of the article is that a ruling denying an eviction may also be appealed; however, a suspensive appeal would be unnecessary since the denial of a rule for eviction would provide nothing to execute.
However, assuming, for the sake of argument, that La. C.C.P. art. 1915 is applicable, as Eagle contends, we still conclude that the judgment at issue is a final judgment without any need to be designated as such pursuant to La. C.C.P. art 1915B.
In its motion, Eagle contends that the Port's appeal is premature pursuant to La. C.C.P. art. 1915 insofar as it claims that the judgment appealed from is one merely denying the Port's request for a preliminary injunction and not addressing the Port's remaining claims. However, not only does Eagle fail to recognize that an appeal lies from a judgment pertaining to a preliminary injunction as a matter of right pursuant to La. C.C.P. art. 3612B, but, more importantly, Eagle mischaracterizes the subject matter of the judgment appealed from. As pointed out by the Port, the judgment at issue in the instant appeal is one dismissing the Port's rule for eviction and not the Port's claim for an injunction. On the contrary, the Port contends that construction on the project is complete thereby extinguishing its need to pursue injunctive relief.
Louisiana Code of Civil Procedure article 3612B provides:
An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.
Moreover, the Port's claim for dissolution of the Lease has been rendered moot by the trial court judgment upholding the Lease and dismissing the Port's summary eviction claim. See Carriere v. Bank of Louisiana, 95-3058 (La. 12/13/96), 702 So.2d 648, 668-69 (on rehearing) (where the supreme court found that the question of whether a lease had been terminated had previously been decided in earlier summary eviction case). See also Sizeler Real Estate Management Co., Inc. v. Family Dollar Stores of Louisiana, Inc., 01-1974 (La.App. 4 Cir. 3/20/02), 814 So.2d 611, 614 (where the court held that the termination or continued existence of a lease was triable in a summary proceeding to evict a lessee).
Nevertheless, Eagle contends that the parties' respective claims for damages remain unadjudicated. Obviously, the parties' claims for damages could not be addressed in a summary eviction proceeding. Nevertheless, in opposing the motion, the Port maintains that "the lower court's dismissal of the Port's eviction claim and upholding the [L]ease, eliminates any claim for damages that the Port may have." Therefore, it contends that the judgment is final pursuant to La. C.C.P. art. 1915A(4), because all that remains is Eagle's reconventional demand for damages which is to be tried separately.
Louisiana Code of Civil Procedure article 1915 A provides, in pertinent part:
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:Eagle's reconventional demand is clearly an incidental demand. See La. C.C.P. art. 1031B. Moreover, the Port asserts that nothing remains of its principal demand, and that all of its claims have been conclusively decided by the trial court's judgment in the summary eviction proceeding. Thus, it contends that the judgment is final under La. C.C.P. art. 1915A(4), since the only claim that remains to be tried is Eagle's reconventional demand for damages.
. . . .
(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
The Port also urged that the judgment was final pursuant to La. C.C.P. art. 1915A(1); however, this subsection is not applicable because the judgment at issue does not dismiss the suit as to any party.
We agree that the Port's claim for damages has been effectively disposed of by the trial court's ruling in the summary eviction proceeding. The trial court determined that the Lease between the Port and Eagle remains in effect. Thus, any claim for damages which the Port may have are premature until the lease is terminated or its term expires. Therefore, because only Eagle's reconventional demand remains to be tried, the judgment at issue constitutes a final judgment under La. C.C.P. art. 1915A(4).
Accordingly, for all of the foregoing reasons, we deny Eagle's motion to dismiss the Port's appeal as premature. We turn now to the merits of the Port's appeal from the trial court judgment dismissing its "suit for eviction" with prejudice.
APPEAL
As previously set forth, a summary eviction proceeding involves the sole issue of whether the lessor is entitled to possession of the premises. Citizens Bank & Trust Co., 583 So.2d at 866. To make that determination, the termination of a lease for any reason is relevant, as well as any defenses offered by the lessee, such as non-termination of the lease or compliance with lease provisions. See La. C.C.P. arts. 4701, 4731, and 4732. Thus, the termination or continued existence of a lease is triable in a summary proceeding to evict a lessee. Sizeler Real Estate Management Co., Inc., 814 So.2d at 614; Clark v. Clark, 377 So.2d 544, 548 (La.App. 3 Cir. 1979).
Regardless, we note that there was no objection by the parties to the trial court's consideration of such matters in a summary as opposed to ordinary proceeding.
Under Louisiana law, the cancellation of leases is not favored. Carriere, 702 So.2d at 655 (reversed on other grounds); Tolar v. Spillers, 43,849 (La.App. 2 Cir. 1/14/09), 2 So.3d 560, 563. The lessor's right to dissolution must be clear. See Shreveport Neon Signs, Inc. v. Williams, 44,079 (La.App. 2 Cir. 2/25/09), 5 So.3d 977, 980; Tolar, 2 So.3d at 564. Furthermore, under the doctrine of judicial control, Louisiana courts are vested with discretion under certain circumstances to decline to grant a lessor cancellation of a lease, although such a right appears to be available to him. Carriere, 702 So.2d at 655 (quoting Ergon, Inc. v. Allen, 593 So.2d 438, 440 (La.App. 2 Cir. 1992)); Martin Timber Company, Inc. v. Pegues, 30,361 (La.App. 2 Cir. 7/06/98), 715 So.2d 728, 732, writ denied, 98-2124 (La. 12/11/98), 729 So.2d 590.
In the instant matter, the trial court concluded that the Port was not entitled to possession of the premises and dismissed its rule for eviction. Based on the written reasons for judgment it adopted, the trial court clearly credited Eagle's argument that it had not breached its obligations under either the Lease or the Supplement; however, to the extent that Eagle's actions could be construed as a breach, it had nonetheless substantially complied with its obligations in good faith such that the doctrine of judicial control precluded dissolution of the Lease.
On appeal, the Port asserts that:
(1) The trial court was manifestly erroneous in finding that Eagle was not in default of its obligations under the Lease; and
(2) The trial court erred in applying the doctrine of judicial control of leases, rather than honoring the clear terms of the Lease providing for dissolution.
Before addressing the Port's assignments of error, we note as a preliminary matter, that many of the arguments that were presented by the parties at the hearing below, and that are asserted on appeal, stray from the precise issues implicated in the summary eviction proceeding. Louisiana Code of Civil Procedure article 4731A expressly requires that the rule to show cause state the grounds upon which the eviction is sought. According to the Port's pleadings, the grounds for the rule for eviction were the two alleged defaults set forth in its August 9, 2012 written notice of default and reiterated in its September 23, 2012 notice of cancellation. Specifically, those two defaults were that:
Although the parties dispute, among other things, whether the plans complied with the April 2011 Report or whether the project was actually constructed properly, we note that those issues are not determinative because they were not the basis for the August 9, 2012 notice of default or the subsequent cancellation notice. Moreover, among the additional purported defaults alleged by the Port in its brief, only two are implicated in its pleadings. The original petition contains an allegation regarding the timeliness of the permit issued by the Corps; however, as we have already noted, that default was cured long before the notice of default was issued. Therefore, this alleged default could not and did not serve as the basis for the notice of cancellation. In addition, the Port's supplemental petition references another alleged default, specifically, the failure of Eagle to complete twenty-five percent (25%) of the project by August 16, 2012. The Port bases this allegation upon an October 2012 report from GSE. However, there was no written notice of default and opportunity to cure provided to Eagle. Accordingly, this alleged default likewise could not serve as a basis for the purported cancellation of the Lease. Indeed, the Port had already sent the notice of cancellation a month before the October 2012 report was issued. --------
(1) Eagle failed to submit plans for construction-installation of the mats to the Port for prior written approval of the Port's engineers before commencement of any construction; and that
(2) Eagle failed to obtain the necessary permit for the construction-installation of the mats on all waterfront of the property.
Thus, it is solely with respect to these two, specific, alleged defaults that we examine the Port's assignments of error. First Alleged Default-Failure to Submit Plans for Approval
The Port argues that the trial court was manifestly erroneous in finding that Eagle was not in default of its obligation to submit plans to the Port in order to obtain prior approval by GSE. It is well settled in Louisiana law that a trial court's findings of fact may not be reversed absent manifest error or unless clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). The reviewing court must do more than just simply review the record for some evidence that supports or controverts the trial court's findings; it must instead review the record in its entirety to determine whether the trial court's findings were clearly wrong or manifestly erroneous. Id. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Id. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id., 617 So.2d at 882-83.
Moreover, in applying the manifest error standard, the trier of fact's credibility determinations are entitled to great deference. In re Succession of Wagner, 08-0212 (La.App. 1 Cir. 8/8/08), 993 So.2d 709, 717. Where documents or evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error in a finding purportedly based upon a credibility determination. However, where such factors are not present, and a fact finder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-45 (La. 1989).
After an exhaustive review of the record in this matter, we find no error in the trial court's conclusion that Eagle did not breach its obligation to submit plans to the Port for the written approval of the Port's engineers, GSE, prior to construction. The documentary evidence established that Eagle provided the Port with what were repeatedly referred to as construction or design drawings for the "mat installation." There was ample testimony attesting to the sufficiency of these plans. After having GSE review the plans, Rabalais, the Port's executive director, informed Eagle in writing: "We are okay with the design." The trial court apparently interpreted the word "we" to mean the Port and GSE. Moreover, subsequent emails from Rabalais stating that Eagle could "proceed" with the construction and suggesting that Eagle may want to "hold off installing the mats on a particular piece of property further substantiate such a conclusion.
In addition, the parties' conduct also supports such a finding. Rabalais did not contest the assertion made by Eagle's attorney that the project had "already been approved by everyone." Indeed, Eagle began constructing the mats in early July under the supervision of an employee of GSE. Yet, despite the substantial amount of correspondence between the parties, at no time prior to the August 9, 2012 notice of default did the Port ever inform Eagle that it was awaiting additional, more detailed plans or that Eagle could not begin construction because its plans had not approved by GSE. It was only in the August 9, 2012 notice of default that Port expressed this contention, long after construction of the mats had begun and two days after the mat installation was undertaken. Finally, we note that Rabalais' explanation that all he was really approving in his email was the design of the concrete mat itself was contradicted by the documentary evidence which established that Eagle did not provide a mat design drawing until approximately one month after Rabalais' email. Accordingly, we find no merit in the Port's argument with regard to this alleged default. Second Alleged Default-Failure to Obtain Necessary Permit
The Port next argues that the trial court was manifestly erroneous in concluding that Eagle was not in default of its obligation to obtain the necessary permit for the project. The Port's contention was that the permit that had been obtained was insufficient for the plans and ultimate construction-installation of the mats in accordance with the requirements of the April 2011 Report. Specifically, the Port complained the permit allowed for the placement of mats only twenty-five feet from the high-water mark, and it contended that in certain areas that the mats would have to extend beyond that point.
At the outset, we note that no one contests that the permit Eagle obtained was in compliance with, or rather was sufficient for, the plans we have already determined were approved. Moreover, Eagle's engineer at T. Baker Smith maintained that Eagle's plans and the permit met the requirements of the April 2011 Report. The testimony at the hearing further established that the mats would not necessarily have to reach to the bottom of the channel, as previously asserted by GSE in its August 3, 2012, letter. Although there was some indication in the record that there may be certain areas where one row of mats might be insufficient, we cannot say that this was definitively established. Finally, the Port and GSE were provided with Eagle's permit applications as well as the completed permit for their review; however, it was not until months later, and after the project had significantly progressed, before the Port challenged the adequacy of the permit.
In light of the foregoing, we find that the trial court's conclusion "that Eagle has not breached its lease obligations" was not manifestly erroneous. Accordingly, we need not address the parties' respective arguments pertaining to the doctrine of judicial control or its potential application in this matter. Having found the Port's assignments of error to be without merit, we affirm the trial court judgment dismissing the Port's rule for eviction.
ANSWER TO APPEAL
Lastly, Eagle has filed an answer to the Port's appeal seeking an award of additional attorney fees incurred in connection with this appeal. Attorney's fees are recoverable when expressly provided for by contract, as in the Lease herein. See Steptore v. Masco Construction Company, Inc., 93-2064 (La. 8/18/94), 643 So.2d 1213, 1218; Matherne v. Barnum, 11-0827 (La.App. 1 Cir. 3/19/12), 94 So.3d 782, 792, writ denied, 12-0865 (La. 6/1/12), 90 So.3d 442. Generally, an increase in attorney fees should be awarded when a party who was awarded attorney's fees in the trial court is forced to and successfully defends an appeal. Oliver v. Transport Service Co., 01-0681 (La.App. 1 Cir. 5/10/02), 825 So.2d 1203, 1208, writ denied, 02-2007 (La. 10/25/02), 827 So.2d 1157. The appeal filed by the Port necessitated additional work for Eagle's attorney, including reviewing a voluminous record, research, drafting an appellee brief and answer to the appeal, and the presentation of oral argument. Under these circumstances, we conclude that Eagle is entitled to an additional award of attorney's fees in the amount of $4,500.00 for answering and defending the appeal.
CONCLUSION
For the above and foregoing reasons, Eagle's motion to dismiss the Port's appeal as premature is denied. The May 3, 2013 judgment of the trial court dismissing the Port's eviction suit is hereby affirmed. Eagle's answer to the appeal is granted, and judgment is hereby rendered in favor of Eagle Dry Dock & Marine Repairs, LLC, and against the Terrebonne Parish Port Commission, in the amount of $4,500.00 for attorney fees incurred in defending the appeal. Terrebonne Parish Port Commission is cast with all costs of this appeal in the amount of $2,353.00.
MOTION TO DISMISS APPEAL DENIED; JUDGMENT AFFIRMED; ANSWER TO APPEAL AND REQUEST FOR ATTORNEY FEES GRANTED. McDONALD, J., Concurring.
I agree that the trial court did not manifestly err in concluding that Eagle did not breach its lease obligations. Thus, any reference to or recognition of the "doctrine of judicial control" is unnecessary to the decision of this case.