Global Construction & Equipment, L.L.C. and Michelle Hebert Versus Rathborne Properties, L.L.C. C/W Rathborne Properties, L.L.C. Versus Global Solution Enterprises, L.L.C.

• Court: Louisiana Court of Appeal
• Decided: May 29, 2019
• Docket: 18-CA-169
• Status: Unknown

Opinion

GLOBAL CONSTRUCTION & EQUIPMENT, NO. 18-CA-169 L.L.C. AND MICHELLE HEBERT C/W 18-CA-170 VERSUS FIFTH CIRCUIT RATHBORNE PROPERTIES, L.L.C. COURT OF APPEAL C/W STATE OF LOUISIANA RATHBORNE PROPERTIES, L.L.C.

VERSUS

GLOBAL SOLUTION ENTERPRISES, L.L.C.

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 753-933, DIVISION "H" HONORABLE GLENN B. ANSARDI, JUDGE PRESIDING

May 29, 2019

ROBERT A. CHAISSON JUDGE

Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg

AFFIRMED IN PART; REVERSED IN PART RAC SJW HJL COUNSEL FOR PLAINTIFF/APPELLEE, GLOBAL CONSTRUCTION & EQUIPMENT, L.L.C. AND MICHELLE HEBERT Patrick H. Patrick Stephen E. Mattesky

COUNSEL FOR DEFENDANT/APPELLANT, RATHBORNE PROPERTIES, L.L.C. Jacob Kansas CHAISSON, J.

In these two consolidated cases arising out of a disputed commercial

property lease agreement and a writ of sequestration, Rathborne Properties, LLC

(“Rathborne”) appeals a judgment of the trial court holding it liable to Michelle

Hebert and her company, Global Solutions Enterprises, LLC (“Global”), in the

amount of $25,680.94. For the following reasons, we affirm in part and reverse in

part the judgment of the trial court, and amend the judgment accordingly.

FACTS AND PROCEDURAL HISTORY

On January 6, 2006, Global, a limited liability company owned by Michelle

Hebert, entered into a lease for commercial warehouse and office space owned by

Rathborne in Harvey, Louisiana.1 Although Global paid its rent late on

intermittent occasions from 2006 to 2015, the parties continued in their lease

agreement. Beginning around May, 2015, Global began missing rent payments. In

August, 2015, Rathborne made a demand for delinquent payments upon Ms.

Hebert and Global by correspondence, which was followed several days later by a

notice to vacate the premises. On September 11, 2015, Ms. Hebert notified

Rathborne that her businesses would be vacating the premises by October 15, and

that all sums owed to Rathborne would be paid before departing the premises. An

agent for Rathborne acknowledged receipt of that notice and contacted Ms. Hebert

to make arrangements to show the property to prospective tenants and place a “for

lease” sign on the property. There were no further communications between Ms.

Hebert and Rathborne.

On September 29, 2015, Rathborne filed a writ of sequestration, which was

executed on October 1, 2015, by Jefferson Parish Sheriff’s deputies and

1 Between 2006 and 2015, another corporation owned by Ms. Hebert, Global Construction & Equipment, LLC, operated out of the leased premises and paid rent to Rathborne. The rights and obligations of Global Solutions Enterprises, LLC and Global Construction & Equipment, LLC vis-à-vis the parties were determined in the trial court following various peremptory exceptions filed by Rathborne. For the purposes of resolving the issues raised in this appeal, these two entities are indistinguishable, and therefore will be referred to as “Global” herein.

18-CA-169 C/W 18-CA-170 1 Rathborne’s attorney, who came to the leased premises and proceeded to seize

Global’s movables. When Ms. Hebert arrived during the course of the seizure,

Rathborne’s attorney demanded $17,000.00 from her. That same day, Ms. Hebert

tendered a cashier’s check to Rathborne’s attorney in the amount of $16,343.00,

and the seizure was halted. The following day, Rathborne sent another notice to

vacate the premises as well as a demand for additional money. A letter included

with the demand indicated that the Petition for Sequestration and Rule for

Possession of Premises would be dismissed because of the $16,343.00 payment.

Rathborne never filed for a dismissal.

On October 8, 2015, Global and Ms. Hebert filed a petition for damages in

which they alleged that Rathborne, through its agent, had entered into a contractual

agreement concerning the payment of rent owed, which Rathborne breached in bad

faith in causing the writ of sequestration to be issued. In addition to the return of

money paid in excess of the rent owed under the lease agreement, Ms. Hebert and

Global sought damages for intentional infliction of emotional distress, unjust

enrichment, intentional tort, and abuse of process. The trial court granted a motion

to transfer filed by Rathborne to have the case consolidated with the sequestration

proceedings. Rathborne also filed peremptory exceptions of no cause of action and

no right of action, which were denied by the trial court. On July 15, 2016,

Rathborne filed an answer and affirmative defenses to plaintiffs’ petition for

damages, wherein they refuted the existence of any agreement regarding payment

of past due rent prior to the October 15 departure. Rathborne also filed

reconventional demands against Global and Ms. Hebert for rent owed for the

month of October, 2015, and for damages to the leased premises.

Following a two-day bench trial, the trial court rendered judgment in favor

of Ms. Hebert and Global. In its reasons for judgment, the trial court found that a

contract had been formed between the parties regarding the payment of past due

18-CA-169 C/W 18-CA-170 2 rent and the date that Global was to vacate the premises, and that the writ of

sequestration was therefore wrongfully issued in violation of that agreement.

Rathborne was ordered to pay $27,784.27, a sum which includes the difference

between the delinquent rent owed and what Ms. Hebert paid to stop the

sequestration, attorney’s fees due for wrongful sequestration under La. C.C.P. art.

3506, and general damages to Ms. Hebert individually. The trial court further

found that Global had caused $2,103.33 in damages to the leased premises and

awarded Rathborne that amount, making the total award from Rathborne to Global

and Ms. Hebert the sum of $25,680.94. Rathborne filed a motion for a new trial

which was denied by the trial court. This timely appeal follows.

On appeal, Rathborne raises multiple assignments of error which generally

concern the following issues: 1) the existence of an agreement to forebear, or

promise of payment between the parties; 2) the award of general damages to Ms.

Hebert; 3) the amount of the award for damages to the property; and 4) the award

of attorney’s fees. In response, Global and Ms. Hebert filed an answer to

Rathborne’s appeal seeking an increase in the award of attorney’s fees.

DISCUSSION

Agreement to Forebear

The existence of a forbearance agreement between the parties directly relates

to the trial court’s finding that Rathborne had no “good cause” to initiate

sequestration proceedings against Global and that the writ of sequestration was

therefore wrongfully issued. On appeal, Rathborne argues that the trial court erred

in its factual finding that Rathborne agreed to forebear on the payment of

delinquent rent owed by Global until such time as Global vacated the leased

premises. Specifically, Rathborne disputes that any action, or inaction, on the part

of its representatives in response to Ms. Hebert’s September 11, 2015 email,

indicated acquiescence by Rathborne to Global’s proposal for the payment of the

18-CA-169 C/W 18-CA-170 3 delinquent rent. This argument, which omits any reference to this Court’s standard

of review, is nearly the same argument made by Rathborne at trial and on the

motion for new trial.

It is well settled that a court of appeal may not set aside a trial court’s

findings of fact in the absence of manifest error, or unless it is clearly wrong, and

where there is a conflict in the testimony, reasonable evaluations of credibility and

reasonable inferences of fact should not be disturbed upon review. Rosell v.

ESCO, 549 So.2d 840, 844 (La. 1989). Where there are two permissible views of

the evidence, the factfinder’s choice between them cannot be manifestly erroneous

or clearly wrong. Id.

A contract is formed by the consent of the parties established through offer

and acceptance which may be made orally, in writing, or by action or inaction that

under the circumstances is clearly indicative of consent. La. C.C. art. 1927. When

determining whether a contract has been formed, the trial judge is given discretion

to determine if consent to an agreement may be implied from the particular

circumstances of each case. Vignette Publications, Inc. v. Harborview Enterprises,

Inc., 00-1711 (La. App. 4 Cir. 9/12/01), 799 So.2d 531, 534, citing McDermott,

Inc. (Harvey Supply Div.) v. M–Elec. & Const. Co., Inc., 496 So.2d 1105 (La. App.

4 Cir. 10/9/86).

Over the course of the trial, the court heard testimony from both Ms. Hebert

and Ms. Annette McDow, the agent for Rathborne with whom Ms. Hebert had

communicated in August and September of 2015 regarding Global’s intent to

vacate the property before October 15 and pay all past due rent prior to that date.

Email communications and other documents exchanged between the parties were

also introduced into evidence. The testimony that was presented was conflicting:

Ms. Hebert testified that the offer she made in the September 11, 2015 email to

vacate the building and pay the delinquent rent owed was accepted by Ms.

18-CA-169 C/W 18-CA-170 4 McDow. Ms. McDow denied that she orally expressed acceptance, but

acknowledged that she took actions consistent with what was proposed in Ms.

Hebert’s email.

In its reasons for judgment, the trial court found the testimony of Ms. Hebert

more credible, and particularly stated that Ms. McDow’s testimony indicated

acceptance of the offer. Both parties presented sufficient evidence at trial that

reasonably support their conclusions. There is no dispute that over the long course

of this lease, Rathborne had accepted late rent payments from Global. Although it

may be considered an unusual business practice to continue such forbearance at the

termination of the lease, we simply cannot say, upon our review of the evidence,

that the trial court was manifestly erroneous in crediting the testimony of Ms.

Hebert and determining that Rathborne agreed to forbear on the payment of

delinquent rent until Global vacated the premises.

Award of General Damages to Ms. Hebert

The award of general damages to Ms. Hebert for wrongful sequestration of

Global’s property raises a question of law. Questions of law are not reviewed on

appeal under the manifest error or clearly wrong standard, but rather under a de

novo review. Sid-Mar’s Rest. & Lounge, Inc. v. State ex rel. Governor, 15-326

(La. App. 5 Cir. 12/9/15), 182 So.3d 390, 399. At trial, Ms. Hebert offered two

theories of recovery for the alleged mental anguish, embarrassment, and

humiliation she suffered. First, she relies on an unpublished case from the First

Circuit, Tchefuncte Harbour Townhome Ass’n, Inc. v. Costanza, 15-0524 (La. App.

1 Cir. 11/6/15), wherein the Court held , generally, that damages for wrongful

seizure are allowed after an illegal seizure, and that such an award can include

compensation for embarrassment, humiliation, mental anguish and worry. The

Tchefuncte case, and the cases cited therein, may be distinguished from the case

sub judice because in those cases, the property being seized was the personal

18-CA-169 C/W 18-CA-170 5 property and homes of the plaintiffs. Id.; Bank of New York Mellon v. Smith, 11-

0060 (La. App. 3rd Cir. 6/29/11), 71 So.3d 1034, 1045, writ denied, 11-2080 (La.

11/18/11), 75 So.3d 1034, quoting Dixie Sav. And Loan Ass’n v. Pitre, 99-154 (La.

App. 5 Cir. 7/27/99), 751 So.2d 911, 921, writ denied, 99-2867 (La. 12/10/99), 751

So.2d 855. In this case, the property seized did not belong to Ms. Hebert, but to

Global, and therefore we find this theory of recovery for general damages

inapplicable.

Ms. Hebert also articulated in her petition a claim against Rathborne for

intentional infliction of emotional distress as a basis for awarding her general

damages. In order to recover for intentional infliction of emotional distress, a

plaintiff must establish (1) that the conduct of the defendant was extreme and

outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and

(3) that the defendant desired to inflict severe emotional distress or knew that

severe emotional distress would be certain or substantially certain to result from

his conduct. White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991). Liability

can arise where the actor desires to inflict severe emotional distress or where he

knows that such distress is certain or substantially certain to result from his

conduct. Id. at 1210. While Ms. Hebert presented some evidence at trial as to the

severity of the mental anguish and embarrassment she suffered on the day of the

seizure, no evidence was offered to show that Rathborne intentionally or

knowingly sought to inflict severe emotional distress on Ms. Hebert.

Upon our de novo review, we find no basis for the award of general

damages, and accordingly, we reverse that part of the trial court’s judgment

awarding Ms. Hebert $5,000.00 in general damages.

Award for Damages to the Property

Rathborne made demands in reconvention for breach of provisions of the

lease which required that Global surrender the premises in like order and condition

18-CA-169 C/W 18-CA-170 6 as received, wear and tear excepted. On appeal, Rathborne argues that the trial

court erred in holding Global liable only for damages to the roll-up doors and

ceiling amounting to $2,103.33, rather than for the $6,032.35 in purported property

damage alleged in the reconventional demand.

The trial court’s factual determinations on this issue are reviewed under the

manifestly erroneous, clearly wrong standard of review articulated above.

Rathborne provided invoices and put witnesses on the stand to testify as to the

damages to the lights and water heater. The trial court weighed this evidence and

determined which items of damage were caused by Global and which were normal

wear and tear. Upon review of this evidence, we find no manifest error in the trial

court’s determinations regarding the damages caused by Global and the resulting

award amount to Rathborne for these damages.

Award of Attorney’s Fees

Rathborne argues that the trial court’s award of $16,671.50 in attorney’s fees

pursuant to La. C.C.P. art. 3506 is improper because the award includes fees

incurred for Ms. Hebert and Global’s action for damages and not merely the action

to dissolve the writ of sequestration.

La. C.C.P. art. 3506 states, in pertinent part:

The court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.

While Rathborne argues that the writ of sequestration was dissolved on

October 1, 2015, upon Ms. Hebert’s payment, the actual motion and order for

dismissal of the writ was drafted, sent to opposing counsel, but never filed by

Rathborne in court. The determination of whether the writ was wrongfully issued,

and the final dissolution of the writ, did not occur until the district court’s

18-CA-169 C/W 18-CA-170 7 judgment following trial on the merits. Rathborne’s argument about attorney’s

fees was carefully considered by the trial court in its judgment denying the motion

for a new trial. In its reasons for judgment, the trial court stated:

It is well settled in Louisiana that ‘rules of procedure implement the substantive law and are not an end in themselves. Each pleading must be reasonably construed so as to afford the litigant his day in court, arrive at the truth, and do substantial justice.’ First National Bank v. Pearl River Fabricators, Inc., 971 So.2d 302 (La. 2007) (allowing a party by intervention to seek damages and attorney fees for wrongful sequestration under Art. 3506). The characterization of a pleading by a litigant is not controlling. Pleadings are taken for what they actually are and not for what their authors designate them. A court should not reject a justiciable cause ‘merely because it is dressed in the wrong coat.’ State, Dep’t of Children & Family Servs ex rel. AL v. Lowrie, 167 So.3d 578 (La. 2015). As stated by Global/Hebert, here, its petition served as a reconventional demand under Art. 3506 and attorney’s fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits, as occurred here.

Under these circumstances, we find no abuse of discretion in the trial court’s

construction of the plaintiffs’ pleadings as a reconventional demand, and therefore

affirm the award of attorney’s fees on that basis.

In their answer to the appeal, Global and Ms. Hebert have requested an

additional $5,000.00 in attorney’s fees in relation to their work on the appeal of

this case. While we recognize that the damages authorized under La. C.C.P. art.

3506 include such fees, it is within this Court’s discretion as to whether such an

award is made. Under the circumstances of this particular case, we decline to

award any additional attorney’s fees to Global and Ms. Hebert.

CONCLUSION

We affirm that portion of the judgment awarding $6,112.77 to Global for the

wrongful sequestration of Global’s property on October 1, 2015, which represents

the $16,343.00 paid by Ms. Hebert, minus $10,230.23 in delinquent rent owed to

Rathborne. We reverse that portion of the judgment awarding $5,000.00 in general

damages to Ms. Hebert. We affirm that portion of the judgment awarding

18-CA-169 C/W 18-CA-170 8 $2,103.33 to Rathborne for property damage caused by Global. We affirm as well

the award of $16,671.50 in attorney’s fees owed to Ms. Hebert and Global for the

issuance of the wrongful writ of sequestration, but we decline to award any

additional attorney’s fees as requested in the answer to the appeal. Accordingly,

we amend the judgment so that the total amount due from Rathborne to Global and

Ms. Hebert is $20,680.94.

AFFIRMED IN PART; REVERSED IN PART

18-CA-169 C/W 18-CA-170 9 SUSAN M. CHEHARDY MARY E. LEGNON

CHIEF JUDGE INTERIM CLERK OF COURT

FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MAY 29, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

18-CA-169 C/W 18-CA-170 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE GLENN B. ANSARDI (DISTRICT JUDGE) NO ATTORNEYS WERE ENOTIFIED

MAILED PATRICK H. PATRICK (APPELLEE) JACOB KANSAS (APPELLANT) STEPHEN E. MATTESKY (APPELLEE) ATTORNEY AT LAW ATTORNEYS AT LAW POST OFFICE BOX 1330 400 POYDRAS STREET GRETNA, LA 70054-1330 SUITE 1680 NEW ORLEANS, LA 70130