Bergen Brunswig Drug Co. v. Poulin

639 So. 2d 453, 1994 WL 278526
CourtLouisiana Court of Appeal
DecidedJune 24, 1994
Docket93 CA 1945
StatusPublished
Cited by12 cases

This text of 639 So. 2d 453 (Bergen Brunswig Drug Co. v. Poulin) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bergen Brunswig Drug Co. v. Poulin, 639 So. 2d 453, 1994 WL 278526 (La. Ct. App. 1994).

Opinion

639 So.2d 453 (1994)

BERGEN BRUNSWIG DRUG COMPANY
v.
Daniel P. POULIN, In His Capacity as Trustee of the SLIP Trust.

No. 93 CA 1945.

Court of Appeal of Louisiana, First Circuit.

June 24, 1994.

*454 Charles P. Blanchard, New Orleans, for plaintiff-appellant Bergen Brunswig Drug Co.

Peter J. Butler, Jr., New Orleans, for defendant-appellee Daniel P. Poulin as Trustee of The SLIP Trust.

Before: WATKINS, SHORTESS and FOGG, JJ.

WATKINS, Judge.

The plaintiff/lessee, Bergen Brunswig Drug Company (Bergen), filed a suit for declaratory judgment against its lessor, the SLIP Trust,[1] seeking interpretation of its contract of lease after a fire in an adjacent building damaged the plaintiff's inventory and the leased premises.

The petition alleges the following facts: Bergen leased Suite 190 of a building known as the Baton Rouge Building Center, located at 6565 Exchequer Drive, Baton Rouge, Louisiana, from Gateway Warehousing Center Partnership. The SLIP Trust acquired the leased building by act of sale on March 22, 1988, and all leases affecting the building were assigned to the SLIP Trust as part of the sale. On July 14, 1992, a fire originating in an adjacent building damaged the plaintiff's leased space and its contents therein.

This proceeding was filed on September 14, 1992, seeking declaratory judgment on two disputed issues: (1) whether the damage to the leased premises caused the lease to terminate; (2) which party is responsible for the remediation requirements mandated by governmental authorities for the disposal of the plaintiff's pharmaceutical inventory.[2] The SLIP Trust filed a peremptory exception of no cause of action seeking dismissal of the dispute as an improperly raised action for declaratory judgment.[3] After a hearing, the *455 trial court dismissed the plaintiff's suit with prejudice for the following reasons:

The matter before the court has been styled exception of no cause of action. As mentioned by counsel, the styling is of no consequence. You can call it a motion to dismiss. The purpose behind the exception is to address a question of whether or not a declaratory judgment is the proper procedure in this particular case, one where there was a written lease between parties, lessor and lessee. The question is whether or not the lessor has the responsibility of disposing of damaged property owned by lessee. The lessee had various drugs and other paraphernalia in the leased premises. As a result of a fire, there was damage to these items of merchandise. And because of the nature of the merchandise, you just can't take it out to Devil's Swamp. There is a procedure inasmuch as they constitute drugs and other perhaps hazardous material. The court has looked at the contract and the lease and the rider. As mentioned, the question is under paragraph 9 and 14 of the rider as to whether or not those particular paragraphs provide terminology that would make the lessor responsible to clean up the merchandise owned by the lessee. I don't think that the lease really encompasses what I understand, i.e., that the repairs to the building, repairs to the premises, I don't think that includes hauling off all of these damaged drugs. I do understand that declaratory judgment is appropriate in seeking construction of the contract between lessor and lessee, but I don't think that this particular lease has any provisions in it that needs to be interpreted as to whose responsibility it is to dispose of this damaged merchandise. So I do not think that a declaratory judgment is the proper procedure in this matter because I don't think that the contract provides the remedy or even sets up a remedy as to who has the responsibility. I think the proper procedure would be one in tort. So the court is going to grant the exception of no cause and/or motion to dismiss.

The plaintiff appealed the trial court judgment alleging that the trial court erred in dismissing its suit for failure to state a cause of action and in deciding the merits of a dispute concerning the proper interpretation of a lessor's obligation under a lease on an exception of no cause of action.

The instant suit for declaratory judgment was filed pursuant to LSA-C.C.P. art. 1871-1876, which provide:

LSA-C.C.P. art. 1871:

Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree.
LSA-C.C.P. art. 1872:
A person interested under a ... written contract or other writing constituting a contract, ... may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
LSA-C.C.P. art. 1876:
The court may refuse to render a declaratory judgment or decree where such judgment or decree, if rendered, would not terminate the uncertainty or controversy giving rise to the proceeding.

The purpose of a declaratory judgment pursuant to these codal provisions is simply to establish the rights of the parties or express the opinion of the court on a question of law without ordering anything to be done. Watts v. Aetna Cas. and Sur. Co., 574 So.2d 364 (La.App. 1st Cir.1990). These articles are remedial in nature and must be liberally construed. Stoddard v. City of New *456 Orleans, 246 La. 417, 165 So.2d 9 (1964). A person is entitled to relief by declaratory judgment when his rights are uncertain or disputed in an immediate and genuine situation and declaratory judgment will remove that uncertainty or terminate that dispute. State, Etc. v. Sugarland Ventures, Inc., 476 So.2d 970 (La.App. 1st Cir.), writ denied, 478 So.2d 909 (La.1985); Morial v. Guste, 365 So.2d 289 (La.App. 4th Cir.), writ denied, 365 So.2d 1375 (La.1978); Dazet v. French Market Homestead, 533 So.2d 115 (La.App. 4th Cir.1988). When declaratory judgment is thus appropriate, neither the existence of another adequate remedy nor the fact that further relief has been or can be claimed will preclude a court from rendering judgment declaring a petitioner's rights or status. In Re P.V.W., 424 So.2d 1015 (La.1982).

A suit for declaratory judgment is an ordinary, not a summary proceeding. Frierson v. Sheridan, 593 So.2d 655 (La.App. 1st Cir.1991). Accordingly, the procedures for a trial in an ordinary proceeding apply. LSA-C.C.P. art. 1631, et seq.

The function of the peremptory exception of no cause of action is to have plaintiff's action declared legally nonexistent, or barred by effect of law. Bordelon v. Cochrane, 533 So.2d 82 (La.App. 3rd Cir.1988), writ denied, 536 So.2d 1255 (La.1989). An exception of no cause of action tests the legal sufficiency of a petition by determining whether the law affords a remedy to the plaintiff for the particular grievance alleged. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
639 So. 2d 453, 1994 WL 278526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bergen-brunswig-drug-co-v-poulin-lactapp-1994.