Cohn Realty Co. v. Able Moving & Storage Co.

402 So. 2d 106, 1981 La. App. LEXIS 4017
CourtLouisiana Court of Appeal
DecidedMay 26, 1981
DocketNo. 14070
StatusPublished
Cited by1 cases

This text of 402 So. 2d 106 (Cohn Realty Co. v. Able Moving & Storage Co.) 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
Cohn Realty Co. v. Able Moving & Storage Co., 402 So. 2d 106, 1981 La. App. LEXIS 4017 (La. Ct. App. 1981).

Opinion

COLE, Judge.

This dispute between landlord (appellee Cohn Realty Company, Inc.) and tenant (appellant Able Moving and Storage Company, Inc.) raises two issues. The first is whether or not the trial court erred in failing to award Able damages for Cohn’s breach of contract. The second is whether or not the court erred in awarding judgment based on the lease agreement in light of the fact the trial judge found there was no “meeting of the minds” as to the lease.

Cohn is the owner of a large two-story warehouse located on Europe Street in Ba[107]*107ton Rouge. The warehouse is from 75 to 100 years old. Able is a moving and storage business owned principally by three brothers: Gregory Constant, Clayton Constant and Rodney Constant. On September 28, 1977, Cohn’s representative, Isidore Cohn, and the Constant brothers entered into a lease agreement which provided for a base term of five years beginning October 1, 1977. For the first fifteen months Able was to lease the first floor of the building for $1,425.00 per month and a nearby vacant lot for $100.00 per month. Beginning January 1, 1979, or at an earlier date upon the election of Able, the second floor of the building fell under the lease at an additional rental of $1,140.00 per month.

The lease agreement specified fourteen improvements to be made by Cohn at the earliest possible date, such as repairs to the dock, steps, awnings, gutters, plumbing, floors, electrical system and other such items. For the first year of the lease Able paid the full amount due but made several oral and written complaints to Cohn about the various things needing repair. Beginning in October of 1978 Able began to pay only $525.00 per month, withholding the balance in an “escrow account” to be used to make the repairs Cohn had allegedly failed to make. Meanwhile, in June of 1978 Able had informed Cohn it desired partial occupancy of the second floor and the rental for this space was set at $380.00 per month for June 1978 through December 1978. Thereafter the rent for the second floor was to be $1,140.00 per month as originally set. Because of the dispute over the fourteen improvements Able withheld all rentals due for the second floor. As of May 1980, Able had withheld a total of $45,790.00 in rental payments.

Cohn filed suit against Able in November of 1978 seeking past due rentals and accelerated rentals for the remaining term of the lease.1 Able answered in the form of a general denial and asserted a reconventional demand against Cohn 2 seeking damages for necessary repairs, compensation for personal injury and property damage caused by the condition of the building, and damages for loss of past, present and future revenues caused by Cohn’s failure to make the repairs. Able further alleged that it was entitled to a dissolution of the lease but because of the nature of its business an attempted relocation would cause irreparable harm.

After a lengthy trial on the merits judgment was rendered in favor of Cohn and against Able in the sum of $45,790.00. The lease was ordered dissolved as of the date the judgment became final (i. e., definitive). Able was ordered to vacate the second floor on the last date of the month in which the judgment became final and to vacate the first floor within six months of that date. Able was to pay the monthly rents as they became due for the remainder of its occupancy.

In his written reasons for judgment the trial judge noted it is well settled a tenant cannot simply refuse to pay the rent, even though the landlord may have breached his obligation to repair the leased premises, citing Cameron v. Krantz, 299 So.2d 919 (La.App. 3d Cir. 1974). The tenant does have the right to make the repairs himself and deduct these sums from the rent, as provided by La.Civ.Code art. 2694. The court recognized this right by rendering judgment on the reconventional demand in favor of Able and against Cohn for $10,372.34. This sum represents a credit given to Able for various repair expenses proven at trial.3

[108]*108Appellant Able argues the court erred in failing to award it damages sustained as a result of Cohn’s breach of the lease. The general measure of damages for such a breach is the amount of loss sustained and the profit of which the tenant has been deprived (within the contemplation of the parties at the time of the contract) due to the lessor’s breach. Reed v. Classified Parking System, 324 So.2d 484 (La.App. 2d Cir. 1975); La.Civ. Code art. 1934.

Able specifically contends it should have been granted damages for the increased labor expenses caused by the unsafe conditions of the floor and dock. The lease specifically provided the west dock would be repaired to accommodate a forklift and the floors would be repaired so that their condition was “secure and safe.” Various witnesses testified the floor was uneven and patched with thin plywood. The dock was allegedly unsteady and of insufficient strength and width to support adequately a forklift. The trial court concluded this was so. Able contends the inadequate floor and dock prevented it from using a forklift and caused it to use an eight-step process, thus increasing labor expenses.

Glenn Peck, Abie’s corporate accountant and expert witness, testified Abie’s warehouse labor costs for the year 1979 equalled $31,866.00 and in his opinion the costs would have been the same for the year 1978. Bruce NcNeal, accepted by the court as an expert in the moving industry, testified the condition of the dock and floors required Able to use the eight-step (soft palletization) moving process rather than the four-step (hard palletization) procedure. McNeal stated the longer process required 37% more labor than the shorter method. Based on these figures, appellants, argue the floor and dock conditions caused them to spend an additional $11,790.42 a year for labor, or a total of $23,580.84 for the two year period.

Although the trial court found the dock and ramp unable to support a forklift, it denied recovery for the increased labor allegedly caused by this condition on the basis that the amount of the damages was highly speculative. We disagree. After carefully examining the record we are convinced Able has proven by a preponderance of the evidence the inability to use the forklift cost them $23,580.84 in additional labor.

Rodney Constant testified Able had not been able to use the forklift (except in “life and death” situations) from the beginning of the lease. His brothers’ testimony substantiated this fact. We find the expert testimony of Mr. Peck and Mr. McNeal established adequately the amount of damage Able suffered because of the dock condition. Therefore, we amend that portion of the judgment granting damages to plaintiffs in reconvention (Able) to allow an additional sum of $23,580.84 as damages for the increased labor expense caused by the condition of the dock and ramp.

The second item for which appellant claims it should be allowed damages is the loss of revenues due to the lack of having its own name painted on the building. The lease specifically provided the lessor would “Remove the marking from the side of the building that contains the name of a prior tenant.” Testimony showed the old tenant’s name remained on the building until it was changed by Able in February of 1979.

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Cite This Page — Counsel Stack

Bluebook (online)
402 So. 2d 106, 1981 La. App. LEXIS 4017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohn-realty-co-v-able-moving-storage-co-lactapp-1981.