Mang v. Heisler Properties, L.L.C.

96 So. 3d 521, 11 La.App. 5 Cir. 867, 2012 WL 1910158, 2012 La. App. LEXIS 704
CourtLouisiana Court of Appeal
DecidedMay 22, 2012
DocketNo. 11-CA-867
StatusPublished
Cited by2 cases

This text of 96 So. 3d 521 (Mang v. Heisler Properties, L.L.C.) 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
Mang v. Heisler Properties, L.L.C., 96 So. 3d 521, 11 La.App. 5 Cir. 867, 2012 WL 1910158, 2012 La. App. LEXIS 704 (La. Ct. App. 2012).

Opinion

MARION F. EDWARDS, Chief Judge.

| ¿This appeal involves a dispute over contested provisions in a lease agreement regarding the right of first refusal to purchase immovable property in Jefferson Parish, and is a companion case to one decided earlier by this Court.1

The matter before the Court in this appeal began as a petition for breach of contract and specific performance filed by plaintiff, Winning Legends, Inc., against several defendants alleging the property leased by Legends was sold to a third party in violation of a right of first refusal clause in the contract. Legends was subsequently removed as party plaintiff and replaced by its sole shareholder, Fabien Mang. The judgments on appeal are the grant of an exception of no right of action of Mang to maintain the lawsuit, and summary judgment in favor of defendants. For reasons that follow, we affirm both judgments.

FACTS

Brothers, Frank P. Dimitri and Joseph Dimitri, owned property on North Hullen Street in Jefferson Parish, Louisiana. On February 25, 1985, they leased 13the property to Andrew Jaeger. On November 4, 1991, Winning Legends, Inc. (“Legends”), assumed the lease. Fabien Mang is the sole shareholder of Legends. The lease provided for successive options to renew the lease, and Legends renewed and recorded each option up through February 28, 2007.

Frank Dimitri died in 1993, and his wife, Josephine DeSalvo Dimitri,2 was recognized as his sole heir and was placed in possession of Frank’s undivided one-half interest in the property. Legends’ lease was uninterrupted because it was properly recorded.

On May 30, 2000, Josephine DeSalvo Dimitri filed a petition for relief under Chapter 11 of the Bankruptcy Code. In that proceeding, all of Mrs. Dimitri’s property, including her undivided one-half interest in the North Hullen Street property, was passed to the Bankruptcy Trustee. The Bankruptcy Trustee recognized William C. Garrett as a creditor when it was shown that he held a first mortgage on several of the properties, including the North Hullen Street property at issue herein.

[523]*523On April 25, 2002, the Bankruptcy Court converted Mrs. Dimitri’s reorganization case into a Chapter 7 liquidation proceeding. The property was seized and sold to the highest bidder, the Succession of William C. Garrett (“Garrett Succession”), at a public auction on October 14, 2003. On that same day, the United States Marshall sold and conveyed to the Garrett Succession several properties belonging to Mrs. Dimitri, including the undivided one-half interest in the North Hullen Street property. However, because Legends had filed the lease in the public records prior to this sale, it survived the foreclosure sale and remained valid.

|4On June 19, 2003, Joseph Dimitri died. On December 11, 2003, Joseph’s succession sold some of his property, including his undivided one-half interest in the North Hullen Street property to Mrs. Josephine DeSalvo Dimitri. ■ She subsequently sold this property and other parcels to Heisler Properties, L.L.C. (“Heisler”).

On August 26, 2005, Legends filed this suit for breach of contract and specific performance seeking to enforce the right of first refusal clause in the lease on the North Hullen Street property. Legends named Heisler, the individual Garrett heirs, as well as Josephine DeSalvo Dimi-tri, the executrix and heirs of Frank Dimi-tri’s succession, Josephine Virga Dimitri, and the executrix and heirs of Joseph Dim-itri’s succession. The action sounds in contract and alleges breach of the right of first refusal clause. Legends asserts it had the right of first refusal to purchase the property that was improperly sold at the Marshall’s sale in violation of that clause. All defendants answered the lawsuit raising various defenses.

The Garrett Succession and Heisler filed an exception of no right of action alleging that Fabien Mang and Legends assigned the lease to Townsend Legends, Inc. on December 10, 2005. In response, Legends and Mang filed a motion to substitute proper party-plaintiff asserting that Mang, as sole shareholder of Legends, sold his interest in the company Winning Legends, Inc. to Raymond Townsend on November 7, 2005. However, Mang maintained that he retained all rights of first refusal and options to purchase the real property and improvements thereon in the sale of the business. That motion was granted by the trial court on March 28, 2006, and Fabien Mang was substituted as plaintiff for Legends.

Townsend Legends, Inc. (“Townsend”) filed a petition of intervention asserting that, as the current lease holder on the property, it has a vested interest in |fithe original matter before the court. A motion for summary judgment on the issue of the validity of the lease was filed by Townsend and granted by the trial court.3

The executrix of Frank Dimitri’s succession filed an exception of no cause of action based on a clause contained in the lease that excluded a transfer or sale of property to heirs from the right of first refusal clause. That exception was granted by the trial court. Fabien Mang filed a motion for new trial on that judgment.

The exceptions of no right of action filed by the Garrett Succession and Heisler were also granted, and Mang filed a motion for new trial on those judgments. While that motion was pending, on December 28, 2010, this Court handed down an opinion in a companion case,4 in which [524]*524Royal Oldsmobile filed a similar action on another parcel of land acquired by Heisler in the same transaction. Based on that opinion, the Garrett Succession filed a motion for summary judgment. By agreement of the parties, the hearing on the motion for new trial was continued to be heard with the motion for summary judgment filed by the Garrett Succession.

After a hearing on the matter, the trial court granted the Garrett Succession’s motion for summary judgment, dismissing the claims against them. In that same judgment, the trial court denied Fabien Mang’s motion for new trial.

Fabien Mang has filed an appeal of that judgment.

LAW AND ANALYSIS

On appeal, Mang presents five assignment of error for our review. He asserts the trial court erred in:

1) Ruling that Fabien Mang does not have a right of action for specific performance to proceed in this case;
| fi2) Granting the Garrett Succession’s motion for summary judgment;
3) Granting the Heisler’s exception of no right of action;
4) Failing to hold that the Garrett Succession and Heisler were required to provide Legends with Mennonite notice; and
5) Failing to order specific performance setting aside the sale of one-half undivided interest of the property from Josephine DeSalvo Dimitri to Heis-ler, as well as the sale to the Garrett Succession.

NO RIGHT OF ACTION

The issue in assignments one and three for our.consideration is the decision of the trial court to grant the exception of no right of action filed by the Garrett Succession and Heisler. The objection of no right of action tests whether the plaintiff has a “real and actual interest” in the suit.5

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Bluebook (online)
96 So. 3d 521, 11 La.App. 5 Cir. 867, 2012 WL 1910158, 2012 La. App. LEXIS 704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mang-v-heisler-properties-llc-lactapp-2012.