First Bank & Trust v. Redman Gaming of Louisiana, Inc.

131 So. 3d 224, 13 La.App. 5 Cir. 369, 2013 WL 6504340, 2013 La. App. LEXIS 2554
CourtLouisiana Court of Appeal
DecidedDecember 12, 2013
DocketNo. 13-CA-369
StatusPublished
Cited by17 cases

This text of 131 So. 3d 224 (First Bank & Trust v. Redman Gaming of Louisiana, Inc.) 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
First Bank & Trust v. Redman Gaming of Louisiana, Inc., 131 So. 3d 224, 13 La.App. 5 Cir. 369, 2013 WL 6504340, 2013 La. App. LEXIS 2554 (La. Ct. App. 2013).

Opinion

MARC E. JOHNSON, Judge.

1 ^Defendant, Redman Gaming of Louisiana, L.L.C. (“Redman”), appeals the trial court’s granting of summary judgments in favor of plaintiff, First Bank and Trust (“First Bank”), on the issues of liability and damages in connection with a breach of contract claim. In two separate judgments, the trial court found that Redman breached an enforceable contract and awarded $1,000,000 in damages to First Bank. For the reasons that follow, we affirm both judgments.

FACTS & PROCEDURAL HISTORY

On September 5, 2007, Redman entered into a purchase agreement with Bouree Gaming, L.L.C. (“Bouree”) wherein Red-man agreed to sell “the exclusive right to place and operate ... video gaming devices” at 20 listed locations, as well as [226]*226other listed property,1 to Bouree for $1,800,000.2 The purchase agreement [■¡provided for an initial payment of $50,000, with the balance being owed at the closing on or before September 28, 2007.

On September 21, 2007, Bouree executed a promissory note in favor of First Bank in the amount of $1,400,000. On the same date, all three parties, Bouree, First Bank and Redman, entered into an “Agreement Regarding Repurchase of Assets” (“the Agreement”), in which Redman agreed to repurchase certain assets set forth in the September 5, 2007 purchase agreement between Redman and Bouree in the event Bouree defaulted on its promissory note to First Bank. The Agreement provided that the repurchase price of the assets was the lesser of $1,000,000 or the total amount owed on the promissory note.

On May 19, 2011, First Bank sent a demand letter to Redman advising that Bouree had defaulted on the promissory note and sought to enforce Redman’s obligation to repurchase Bouree’s assets as provided in the Agreement. First Bank specifically requested the repurchase price of $1,000,000. Thereafter, on June 16, 2011, First Bank sent a second demand letter to Redman again requesting that Redman repurchase Bouree’s assets under the Agreement. First Bank noted that the outstanding balance on Bouree’s promissory note exceeded $1,000,000 and, thus, First Bank sought payment by Redman for the lesser repurchase price of $1,000,000.

On July 14, 2011, First Bank filed a Petition for Breach of Contract against Redman claiming that it failed to pay $1,000,000 for the repurchase of Bouree’s assets as required under the Agreement. First Bank further asserted Redman breached the Agreement in bad faith and, thus, sought all damages resulting from the breach. In its prayer for relief, First Bank requested payment of the $1,000,000, attorney’s fees and costs, pre-judgment interest, and all other equitable |4relief. Redman responded by filing a peremptory exception of non-joinder of party, after which First Bank amended its petition to add Bouree as a defendant.

Redman then answered the lawsuit and filed a cross-claim against Bouree seeking transfer of the assets subject to the Agreement in the event Redman was found liable to First Bank. Thereafter, Redman filed a motion for summary judgment seeking dismissal of First Bank’s claims against it on the basis the Agreement was unenforceable because neither First Bank nor Bouree currently owned or possessed all the assets that were subject to repurchase under the Agreement and, thus, the assets could not be repurchased. First Bank responded by filing a cross-motion for summary judgment seeking judgment as to Redman’s breach of the Agreement.

The motions for summary judgment were heard on November 7, 2012. At the conclusion of the hearing, the trial court denied Redman’s motion for summary judgment and granted First Bank’s motion for summary judgment. The trial court instructed First Bank to prepare a judgment. The record shows that both parties submitted proposed judgments on November 15, 2012. In separate letters to the [227]*227trial court, each party explained there was a disagreement as to whether the trial court’s November 7, 2012 ruling was limited to liability or included an award for damages.

The trial court signed a judgment on November 15, 2012 that granted summary judgment in favor of First Bank as to liability, specifically finding the Agreement was enforceable and that Redman breached the Agreement. The judgment further stated that damages were to be determined at a subsequent hearing or trial. Thereafter, on November 28, 2012, the trial court signed a second judgment granting summary judgment in favor of First Bank, awarding it $1,000,000 plus prejudgment and post-judgment interest. However, on December |fi6, 2012, the trial court, on its own volition, vacated the November 28th judgment. First Bank then filed a motion seeking to clarify/alter/amend the November 15th judgment to include an award of damages in the amount of $1,000,000, which was denied.

First Bank subsequently filed a motion for summary judgment on the issue of damages. After a hearing, the trial court granted the motion against Redman in favor of First Bank and awarded it $1,000,000 in damages. Redman timely filed a suspensive appeal from both the November 15, 2012 judgment finding Red-man breached the Agreement and the January 11, 2018 judgment awarding First Bank damages in the amount of $1,000,000.3 First Bank answered the appeal, challenging the trial court’s January 7, 2013 denial of its motion to clarify/alter/amend.

ISSUES

Redman argues the trial court erred in granting summary judgment on the issues of liability and damages. As to the issue of liability, Redman contends the Agreement is ambiguous and susceptible of more than one interpretation and, thus, parole evidence is required to determine the intent of the parties. It concludes that because the intent of the parties is at issue, summary judgment is precluded.

Regarding the issue of damages, Red-man contends the trial court erred in awarding $1,000,000 in damages after determining that First Bank did not have a duty to mitigate its damages. Redman contends First Bank had a legal duty to mitigate its damages by pursuing its rights against Bouree. Redman specifically asserts that the trial court erred in finding the Agreement contained a stipulated damage provisions, which the trial court found relieved First Bank of its duty to mitigate damages.

| (Additionally, First Bank argues the trial court erred in refusing to award damages in the November 15, 2012 summary judgment. First Bank contends this failure allowed Redman to subsequently raise the issue of mitigation of damages, which it originally failed to do.

APPLICABLE LAW

Appellate courts review a trial court’s ruling on a motion for summary judgment de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smitko v. Gulf South Shrimp, Inc., 11-2566 (La.7/2/12); 94 So.3d 750, 755. A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, admissions, and any affidavits, admitted for purposes of the [228]*228motion, show there are no genuine issues of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Smitko, supra. A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 04-806 (La.6/25/04); 876 So.2d 764, 765 (per curiam ).

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Bluebook (online)
131 So. 3d 224, 13 La.App. 5 Cir. 369, 2013 WL 6504340, 2013 La. App. LEXIS 2554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-bank-trust-v-redman-gaming-of-louisiana-inc-lactapp-2013.