Opinion
NO. 2021 CA 1450
08-24-2022
The MANDEVILLE PARTNERSHIP and the Mandeville Partnership 698, LLC v. A LUXURY TRANSPORTATION, LLC and Carl Revels
Ross F. Lagarde, Jeffrey G. Lagarde, Alexander L.H. Reed, Slidell, LA, Attorneys for Plaintiffs-Appellees, The Mandeville Partnership and The Mandeville Partnership 689, LLC Craig J. Robichaux, Cameron D. Robichaux, Jocelyn R. Guidry, Mandeville, LA, Attorneys for Defendant-Appellant, The Platinum Holding Group, LLC Scott G. Jones, Slidell, LA, Attorney for Defendants-Appellants, A Luxury Transportation, LLC and Carl Revels
Ross F. Lagarde, Jeffrey G. Lagarde, Alexander L.H. Reed, Slidell, LA, Attorneys for Plaintiffs-Appellees, The Mandeville Partnership and The Mandeville Partnership 689, LLC
Craig J. Robichaux, Cameron D. Robichaux, Jocelyn R. Guidry, Mandeville, LA, Attorneys for Defendant-Appellant, The Platinum Holding Group, LLC
Scott G. Jones, Slidell, LA, Attorney for Defendants-Appellants, A Luxury Transportation, LLC and Carl Revels
BEFORE: WHIPPLE, C.J., GUIDRY, AND HESTER, JJ.
HESTER, J.
This matter is before us on appeal by defendants, A Luxury Transportation, LLC, Carl Revels, and The Platinum Holding Group, LLC, from the trial court's grant of a motion for partial summary judgment in favor of plaintiffs, The Mandeville Partnership and the Mandeville Partnership 698, LLC. For the reasons that follow, we reverse.
FACTS AND PROCEDURAL HISTORY
This litigation arises from a commercial lease agreement (the "Lease") between "THE MANDEVILLE PARTNERSHIP" as Lessor (the "Mandeville Partnership" or the "Lessor") and "CARL REBEL et ALL [sic]" as Lessee ("Mr. Revel" or the "Lessee") and concerning property located at 698 Lafitte Street in Mandeville, Louisiana (the "Leased Premises"). The Lease provided for an initial term of twelve months commencing on March 1, 2015 and ending on February 28, 2016 and also contained an automatic renewal of five additional one-year terms, such that the Lease would terminate on February 28, 2020, unless extended in writing. The Lease contained a purchase option, stating that the Lessee "shall have an option to purchase the building at the end of the five[-]year lease term for the agreed price of $750,000.00" (emphasis omitted) and that ten percent of the monthly rental, or $300.00 per month, would be applied as a down payment fund towards the purchase price (subject to additional conditions). The Lessee took possession of the Leased Premises no later than April 2015 and continuously occupied the Leased Premises pursuant to the Lease.
Despite the Mandeville Partnership being identified as the Lessor under the Lease, MP 698 was the owner of the Leased Premises at the time the Lease was confected in March 2015. Mandeville Partnership previously owned the Leased Premises, but transferred title to the property to MP 698 in March 2012.
The Lease identifies the Lessee as Carl Rebel; however, the pleadings reflect that the correct name of the Lessee is Carl Revels.
The Leased Premises is described in the Lease as follows: "698 LAFITTE ST LOCATED ON 1.25 acres of ground, ADJOINING THE TRAILHEAD 70448 IN Mandeville[,] Louisiana, as outlined in red on attached ‘Exhibit A’ ". However, no "Exhibit A" to the Lease appears in the record.
The term "building" is used in this provision and other provisions in the Lease; however, the term is not defined in the Lease.
In March 2018, a lawsuit was filed by Cordus E. Bailey, II, initially naming Mr. Revels, A Luxury Transportation, LLC ("Luxury"), and the Mandeville Partnership as defendants and later adding as defendant the Mandeville Partnership 698, LLC ("MP 698"), for injuries allegedly sustained while working in the Leased Premises at the direction of Luxury (the "Bailey Litigation"). As a result of the Bailey Litigation, the Mandeville Partnership and MP 698 sought defense and indemnity from Luxury and Mr. Revels pursuant to the Lease, which provided that the "LESSEE agrees to indemnify, compensate and save and hold the LESSOR harmless from any and all claims, damages and/or liability whatsoever resulting from ... injury ... of any person ... in the Leased Premises, including reasonable legal fees and court costs incurred by LESSOR." The Mandeville Partnership and MP 698 also sought defense and indemnity from Luxury's insurer, but was denied. Neither the Mandeville Partnership nor MP 698 was named as an insured under the relevant policy, despite the Lease requiring that the Lessee carry and maintain a general liability insurance policy and naming both the Lessee and the Lessor as insureds under the policy.
At all relevant times, Luxury was a Louisiana limited liability company with Mr. Revels as its agent and Holly Revels as its manager.
Approximately eighteen months after being denied defense and indemnity from Luxury's insurer, the Mandeville Partnership and MP 698 issued a "Notice of Default and Lease Cancellation" letter dated January 15, 2020, to Mr. Revels. The Mandeville Partnership and MP 698 informed Mr. Revels of their exercise of the right to terminate the Lease based on his failure to comply with the obligations under the Lease. Mr. Revels was instructed to vacate the Leased Premises within ten (10) days.
The Lease provided, in pertinent part, that,
[S]hould LESSEE fail to comply with any of the other obligations of this lease, within five (5) days from the mailing by LESSOR or notice demanding same, ... then LESSOR shall have the right, at LESSOR'S option (a) to cancel this lease, in which event there shall be due to the LESSOR as agreed upon and liquidated damages, a sum equal to the amount of the guaranteed rent for TWO MONTHS, or alternatively at LESSOR'S option to be reimbursed all actual cost incurred in re-entering, renovation and re-letting said premises .... The remedies provided in (a) and (b) herein may be exercised only after the LESSOR has given LESSEE written notice of the default and the default is not cured within ten (10) days of said notice.
On February 5, 2020, the Mandeville Partnership and MP 698 filed their Petition for Lease Termination and Possession ("Petition"), naming Mr. Revels and Luxury as defendants. The Mandeville Partnership and MP 698 alleged that they never received defense and indemnity relative to the Bailey Litigation and that the Lessee refused to vacate the leased premises after being notified on January 19, 2020. Accordingly, the Mandeville Partnership and MP 698 sought a declaration that the Lease had terminated and further sought to evict the Lessee from and regain possession of the Leased Premises.
We note that the letter was dated January 15, 2020, and the certified mail return receipt indicated that the letter was delivered to Mr. Revels on January 17, 2020.
In response, Mr. Revels and Luxury filed an answer, lis pendens , and reconventional demand. In the reconventional demand, Mr. Revels, as plaintiff-in-reconvention, sought damages against the Mandeville Partnership, defendant-in-reconvention, arising, in part, from the Mandeville Partnership's refusal to comply with the purchase option Mr. Revels exercised on February 20, 2020.
On June 3, 2020, a First Amended and Restated Petition for Declaratory Relief and Damages ("Amended Petition") was filed, renaming Mr. Revels and Luxury as defendants and naming The Platinum Holding Group, LLC ("Platinum") as an additional defendant. In the Amended Petition, the Mandeville Partnership and MP 698 alleged that the Lessee vacated the Leased Premises some time after February 5, 2020 (the date of the filing of the Petition). Further, the Mandeville Partnership and MP 698 alleged they were informed on March 17, 2020, that Platinum acquired the purchase option for the Leased Premises from Mr. Revels and Luxury and that Platinum intended to move forward with the sale. As of the filing of the Amended Petition, however, Platinum had not taken any steps toward exercising the purchase option.
Through the Amended Petition, the Mandeville Partnership and MP 698 sought a declaration that the Lease terminated in January 2020 upon the issuance of the "Notice of Default and Lease Cancellation" letter and a declaration that the Lessee is bound to indemnify them for any judgment entered against them in the Bailey Litigation or for the cost of settlement. The Mandeville Partnership and MP 698 additionally alleged that, because the Lease terminated in January 2020, the purchase option was extinguished and not capable of being exercised by Lessee or anyone else. Accordingly, the Mandeville Partnership and MP 698 sought a declaration that the purchase option was not exercisable by any of the named defendants and that any lis pendens is null and void and without legal effect.
In the alternative, the Mandeville Partnership and MP 698 argued that, even if the purchase option was validly assigned to Platinum and the purchase option was not terminated with the Lease, it is no longer enforceable because Platinum failed to exercise the option within a reasonable time. Further in the alternative, the Mandeville Partnership and MP 698 sought a declaration that neither Mr. Revels, Luxury, nor Platinum were entitled to seek specific performance of the purchase option because the grantor of the purchase option, the Mandeville Partnership, was not the owner of the Leased Premises. The Mandeville Partnership and MP 698 sought an additional declaration in the alternative that the purchase option, if enforceable, only provides for the purchase of the building and not the entire Leased Premises.
The Mandeville Partnership and MP 698 asserted a breach of contract action in the Amended Petition, citing the Lessee's failure to name the Lessor as an insured under the applicable insurance policy, the Lessee's failure to indemnify the Lessor in the Bailey Litigation, and the Lessee's failure to compensate the Lessor for the reasonable attorney's fees and costs incurred in the defense of the Bailey Litigation. As a result of the breach of contract, the Mandeville Partnership and MP 698 averred they were entitled to two months’ rent and entitled to their reasonable attorney's fees and costs incurred in pursuit of the instant lawsuit.
Platinum answered the Amended Petition on June 29, 2020 and asserted a reconventional demand against the Mandeville Partnership and MP 698. Platinum asserted that it was entitled to have the purchase agreement, which it made relative to the assigned purchase option under the Lease, enforced and to have the Mandeville Partnership and MP 698 transfer the entirety of the Leased Premises (and not just the building) to Platinum. Platinum further sought damages in connection therewith. Additionally, Mr. Revels and Luxury answered the Amended Petition on July 3, 2020.
Ultimately, on January 22, 2021, the Mandeville Partnership and MP 698 filed a motion for partial summary judgment, seeking to resolve "the dispute regarding the lease with an option to purchase." The Mandeville Partnership and MP 698 prayed that summary judgment be granted in their favor, ordering Luxury and/or Mr. Revels to pay liquidated damages and to indemnify the Mandeville Partnership for the $162,343.82 incurred defending the Bailey Litigation, and declaring that the purported assignment of the option to purchase to Platinum was null ab initio and not binding on the Mandeville Partnership.
Oppositions to the motion for summary judgment were filed by Mr. Revels, Luxury, and Platinum, and a hearing was held on May 27, 2021. At the conclusion of the hearing, the trial court ruled as follows:
Number one, despite inconsistencies in the names of the parties, a commercial lease agreement was perfected between the parties in 2015 and affirmed by performance until January 15, 2020, when formal notice of termination was sent to the defendants.
Number two, termination of the lease was perfected pursuant to the terms of a lease contract without the requirement of a judgment from this Court.
Number three, the purported assignment to Platinum of the lease after it had been legally terminated was null ab initio.
The trial court took the remaining issue of indemnity under advisement, ordering the parties to file post-hearing briefs. However, on June 23, 2021, the Mandeville Partnership and MP 698 filed a motion and order of dismissal with prejudice, which was signed by the trial court on June 28, 2021, and dismissed "the prayers for relief not ruled on by the court that were incorporated in Plaintiff's [sic] Motion for Partial Summary Judgment, namely the prayer for liquidated damages to be paid by A Luxury and/or Revels and the prayer for indemnification for $162,343.82 to be paid by A Luxury and/or Revels are dismissed, with prejudice."
While the Mandeville Partnership and MP 698 submitted a judgment, the trial court issued its own judgment, signed on August 4, 2021, which granted the motion for partial summary judgment and designated the judgment as final pursuant to La. Code Civ. P. art. 1915(B). The Mandeville Partnership and MP 698 filed a motion for new trial, seeking to clarify the relief granted within the four corners of the judgment. Mr. Revels, Luxury, and Platinum also filed a joint motion for new trial, noting that the August 4, 2021 judgment lacked appropriate decretal language and further seeking to reverse the trial court's ruling. The trial court granted the motion for new trial filed by the Mandeville Partnership and MP 698 and denied Mr. Revels, Luxury, and Platinum's motion.
Thereafter, on August 23, 2021, the trial court signed an amended judgment, granting the motion for partial summary judgment filed by the Mandeville Partnership and MP 698, declaring the termination of the Lease pursuant to its terms, and declaring the purported assignment of the purchase option to Platinum null ab initio. The August 23, 2021 judgment further decreed that the remaining claims for liquidated damages and indemnification were dismissed and required no further action. The August 23, 2021 judgment was designated as a final judgment pursuant to La. Code Civ. P. art. 1915(B). Mr. Revels, Luxury, and Platinum, together, devolutively appealed the August 23, 2021 judgment and assigned as error the trial court's grant of the motion for partial summary judgment and denial of Mr. Revels, Luxury, and Platinum's motion for new trial.
A trial court's designation of a judgment as final is not determinative. As an appellate court, we are obligated to determine whether the trial court properly designated the judgment as final pursuant to La. Code Civ. P. art. 1915 and to recognize any lack of jurisdiction if it exists. Hernandez v. Excel Contractors, Inc., 2018-1091 (La. App. 1st Cir. 3/13/19), 275 So.3d 278, 285. In applying the factors set forth in R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, 1122, we conclude that the trial court properly designated the judgment as a final judgment for purposes of appeal.
After this court examined the record, an interim order was issued, pointing out that the Amended Judgment referenced a document (the Lease) that was not attached to the judgment. This court remanded the matter to the trial court for the limited purpose of instructing the trial court to sign an amended judgment correcting the deficiency and complying with La. Code Civ. P. art. 1951. Subsequently, the record was supplemented with the Second Amended Judgment, signed by the trial court on May 17, 2022, in which the reference to the Lease was removed.
LAW AND ANALYSIS
The purpose of summary judgment is to pierce the pleadings and to assess the proof in order to determine whether there is a genuine need for trial. Louisiana Workers’ Compensation Corp. v. B, B & C Associates, LLC, 2017-1342 (La. App. 1st Cir. 4/9/18), 249 So.3d 18, 22. The initial burden of proof is on the mover. La. Code Civ. P. art. 966(D)(1). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(A)(3).
The mover can meet its burden by filing supporting documentary evidence, which is restricted to pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions, with its motion for summary judgment. La. Code Civ. P. art. 966(A)(4). Other documents that are not included in the exclusive list of La. Code Civ. P. art. 966(A)(4), such as photographs, pictures, video images, or contracts, are not permitted unless they are properly authenticated by an affidavit or deposition to which they are attached. See La. Code Civ. P. art. 966, comments—2015, comment (c). The mover's supporting documents must prove the essential facts necessary to carry the mover's burden. Therefore, in deciding a motion for summary judgment, it must first be determined whether the supporting documents presented by the mover are sufficient to resolve all material fact issues. Jenkins v. Hernandez, 2019-0874 (La. App. 1st Cir. 6/3/20), 305 So.3d 365, 370-71, writ denied, 2020-00835 (La. 10/20/20), 303 So.3d 315.
Appellate courts review summary judgments de novo , using the same standards applicable to the trial court's determination of the issues, and ask the same questions the trial court does in determining whether summary judgment is appropriate. Cabana Partners, LLC v. Citizens Bank & Trust Co., 2018-0133 (La. App. 1st Cir. 12/21/18), 269 So.3d 986, 990. See also La. Code Civ. P. art. 966(A)(3).
In this case, the Mandeville Partnership and MP 698, as the movers, bore the initial burden of proof on summary judgment and would also bear the ultimate burden of proof of establishing entitlement to the declaratory relief requested. See La. Code Civ. P. art. 966(D)(1). In support of their motion, the Mandeville Partnership and MP 698 submitted eight separate exhibits: (A) the affidavit of Adam Perschall, who has an ownership interest in both the Mandeville Partnership and MP 698; (B) the Lease; (C) May 2, 2018 correspondence from the Mandeville Partnership and MP 698 requesting defense and indemnity from Mr. Revels and Luxury regarding the Bailey Litigation; (D) June 6, 2018 correspondence from Luxury's insurer declining coverage, defense, and indemnity; (E) January 15, 2020 Notice of Default and Lease Cancellation; (F) January 23, 2020 correspondence in response to Notice of Default and Lease Cancellation; (G) January 29, 2020 correspondence in response to January 23, 2020 correspondence; and (H) a copy of the quitclaim deed conveying the purchase option to Platinum. The affidavit of Mr. Perschall states that he was aware of the Lease; however, Mr. Perschall's affidavit did not authenticate the Lease or any other documents and failed to attach any documents to the affidavit itself.
No objection was made with respect to any of the exhibits filed in support of the motion, pursuant to La. Code Civ. P. art. 966(D)(2), and the court "shall consider any documents to which no objection is made" to determine if any evidentiary value should be given to the documents. Jones v. Louisiana Medical Center and Heart Hospital, LLC, 2020-0551 (La. App. 1st Cir. 12/30/20), 2020 WL 7770927 * 1, n. 1 (unpublished). Nevertheless, the trial court, and this court on de novo review, may only consider evidence that is admissible under the express provisions of La. Code Civ. P. arts. 966 and 967. Huggins v. Amtrust Insurance Company of Kansas, Inc., 2020-0516 (La. App. 1st Cir. 12/30/20), 319 So.3d 362, 366. In accordance with La. Code Civ. P. art. 966(D)(2), we must consider all non-objected to documents and decide de novo whether we should give any evidentiary value thereto. Pottinger v. Price, 2019-0183 (La. App. 1st Cir. 10/23/19), 289 So.3d 1047, 1053.
Pursuant to our de novo review, we find that the affidavit of Mr. Perschall (Exhibit A) was the only proper summary judgment evidence presented. The remaining unverified, unsworn, unauthenticated documents attached to the Mandeville Partnership and MP 698's motion are not permitted to be filed in support of a motion for summary judgment, as they are not pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, or admissions. See La. Code Civ. P. art. 966A(4) & comments—2015, comment (c); Ramus v. KCJS Trucking, LLC, 2019-0039 (La. App. 1st Cir. 9/27/19), 287 So.3d 728, 736. A document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. Ramus, 287 So.3d at 736. Therefore, the remaining exhibits (Exhibits B-H) have no evidentiary value for purposes of the motion for summary judgment seeking declaratory judgment and cannot serve to carry the Mandeville Partnership and MP 698's burden of proof of establishing that there are no genuine issues of material fact. See Pottinger, 289 So.3d at 1053-54.
Accordingly, we must now determine whether the Mandeville Partnership and MP 698 carried their initial burden of proof as movers in the motion, relying solely on the affidavit of Mr. Perschall. In the affidavit, Mr. Perschall states that he is aware of the Lease and the contents thereof, that Luxury and/or Mr. Revels took possession of the Leased Premises in April 2015, and that the Lease was terminated pursuant to the Notice of Default and Lease Cancellation letter issued to counsel for Luxury and Mr. Revels. The affidavit also contains multiple statements regarding the Bailey Litigation, the expenses incurred by the Mandeville Partnership and MP 698 related to the Bailey Litigation, and the failure of Luxury and/or Mr. Revels to reimburse, indemnify, or defend Luxury and/or Mr. Revels therefor. However, the affidavit does not contain any statements regarding provisions of the Lease breached or any provision of the Lease regarding termination.
Even if the affidavit referenced specific provisions of the Lease, the Lease itself is not attached to the affidavit or otherwise sworn to or verified. See La. Code Civ. P. art. 967(A) (providing, in part, that sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith); see Successions of Millet, 2021-0355, 2021-0356 (La. App. 1st Cir. 12/22/21), 340 So.3d 252, 258.
We find that the Mandeville Partnership and MP 698 did not carry their burden of proof as movers and failed to submit proper summary judgment evidence sufficient to prove the essential facts necessary with their motion. See La. Code Civ. P. art. 966(A)(4) and (D)(1). Pursuant to our de novo review, we find that the trial court erred in granting the Mandeville Partnership and MP 698's motion for summary judgment.
CONCLUSION
For the foregoing reasons, we reverse the trial court's May 17, 2022 judgment, granting The Mandeville Partnership and The Mandeville Partnership 698, LLC's motion for partial summary judgment and remand this matter to the trial court for further proceedings. All costs of this appeal are to be borne by The Mandeville Partnership and The Mandeville Partnership 698, LLC.