Ottermann v. Ganus

444 So. 2d 726, 1984 La. App. LEXIS 7877
CourtLouisiana Court of Appeal
DecidedJanuary 10, 1984
DocketNo. 83-CA-529
StatusPublished
Cited by3 cases

This text of 444 So. 2d 726 (Ottermann v. Ganus) 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
Ottermann v. Ganus, 444 So. 2d 726, 1984 La. App. LEXIS 7877 (La. Ct. App. 1984).

Opinion

CURRAULT, Judge.

This appeal arises from a judgment rendered against defendant-lessee, Thurman W. Ganus, in an action by plaintiff-lessor, Robert A. Ottermann, for possession of property pursuant to the terms of a lease agreement.

In September, 1967, Robert A. Otter-mann, lessor, leased to Thurman W. Ganus, lessee, certain commercial property briefly described as Lots 12 and 13, Square 1, Section “C” of Pontchartrain Gardens Subdivision. This property forms the corner of Veterans Memorial Boulevard and Lime Street in Jefferson Parish. As set forth in that lease, the primary term of the lease was for a period of fifteen (15) years and three (3) months, commencing October 1, 1967 and ending December 31, 1982, with an option to renew and extend the lease for ten years.

Subsequently, by written lease dated December 5, 1967, lessee, Thurman W. Ganus, subleased to PFC of New Orleans Inc. the above described property for a term commencing October 1, 1967, and ending December 31, 1982. The option to renew was retained by Thurman W. Ganus.

On January 14, 1975, Plantation Fried Chicken Corporation (formerly PFC of New Orleans, Inc.) transferred by assignment to A. Copeland Enterprises, Inc. all of its right, title and interest in and to the sublease from Thurman W. Ganus relating to the above described property.

That same date, Thurman W. Ganus subleased to A. Copeland Enterprises, Inc. the above described property for a term of ten years commencing January 1, 1983, and ending December 31, 1992 (the period of time covered by the above referred to option). Also on that date, at the request of the attorney representing A. Copeland Enterprises, Inc., Thurman W. Ganus signed a letter addressed to Mr. Robert A. Otter-mann exercising the ten year option referred to above. The original of that letter was retained by the attorney representing A. Copeland Enterprises, Inc. in connection with the matter.

On February 17, 1975, the option letter was mailed to Mr. Robert A. Ottermann, properly addressed, postage prepaid, certified mail, from the offices of the attorney [728]*728representing A. Copeland Enterprises, Inc. In due course, the return receipt was received back at the offices of the attorney representing A. Copeland Enterprises, Inc. The return receipt, however, was returned unsigned.1

At the end of the primary lease term, by letter dated January 1, 1983, Robert A. Ottermann advised Thurman W. Ganus to vacate the subject premises, alleging that the lease had expired by its own terms December 31, 1982, the ten year option having not been exercised.

Subsequently, Robert A. Ottermann filed a rule for possession of premises alleging that the lease had expired by its own terms on December 31, 1982, and that the ten year option was not exercised in accordance with the terms of this lease. Defendant, Thurman W. Ganus, answered the rule for possession and specifically pleaded as an affirmative defense that the ten year option in question had indeed been exercised on February 19, 1975.

The matter was tried on February 25, 1983. At that time, plaintiffs wife was substituted as party plaintiff due to Mr. Ottermann’s death a few days prior to trial. Following the trial, the court rendered judgment in favor of petitioner and against defendant, ordering eviction of the defendant from the leased premises. From that judgment appellant herein, Thurman W. Ganus, has perfected this appeal.

SPECIFICATIONS OF ERRORS

I.

The trial court erred in holding that the mailing of the letter exercising the option in question did not constitute written notification.

II.

The trial court erred in failing to apply the presumption that a letter properly addressed, posted and mailed was received by the addressee.

III.

The trial court erred in holding that the plaintiff rebutted the presumption of receipt of the letter by positive, direct evidence.

The issue in this case is whether the option was exercised under the contract terms by mailing a letter of intent to plaintiff properly addressed and stamped, with a return receipt returned unsigned by the intended recipient. Appellant concedes that the mailing in and of itself is not sufficient notice, but that the letter must be received by the lessor. Appellant, however, argues that there is presumption of receipt under the jurisprudence where the letter was properly addressed, stamped and mailed, and that the presumption is rebut-table only by direct evidence to the contrary.

Appellee argues to the contrary that there is no legal presumption of receipt arising upon the proper addressing, stamping and mailing of a letter under a contract; but, alternatively, if one exists, it was rebutted by the evidence.

The option clause reads as follows:

“As a further consideration for this lease, Lessor hereby grants Lessee an option to extend the period of this lease for a period of ten (10) years from the expiration of the term of the original lease, said extended term to be on the same terms and conditions and at the same rental as set forth herein. In the event Lessee desires to exercise this option to extend the lease for a period of an additional ten (10) years, Lessee shall notify Lessor in writing at least one hundred twenty (120) days prior to the expiration of this lease.”

Appellee has neither cited, nor have we found jurisprudence precluding use of the [729]*729U.S. Postal System as a method of delivery where the contract is silent in that regard. The trial court relied on the case of Bankston v. Estate of Bankston, 401 So.2d 436 (La.App. 1st Cir.1981) to determine mailing did not constitute written notification. That case, however, involved contract terms which specifically established the sufficiency of notice by ordinary mail. Our review of the trial court’s reasons indicate that the court may have intended its remarks to reflect that mailing alone without further proof of receipt was insufficient under this contract. This proposition is conceded by appellant. It is the question of proof of receipt that is more to the point in the case herein.

Appellant, however, points to Moore v. Drexel Homes, Inc., 293 So.2d 500 (La.App. 4th Cir.1974) as dispositive of the question. There the issue was notice of intent not to renew a lease. The court held a lease silent as to mailing does not preclude it as an acceptable means of giving written notice as long as the letter was received. The court recognized that a presumption of receipt by proper mailing exists in law and stated:

“Moore testified that he personally mailed the letter in an envelope which he properly addressed to Drexel and which contained his return address and that his letter was not returned to him. He relies on New Orleans Silversmith, Inc. v. Wormser, 258 So.2d 592 (La.App. 4th Cir.1972), to invoke the presumption of due receipt by an addressee of a letter properly addressed, stamped and mailed.” At page 502.

Relying on McWilliams v. Reith, 149 La. 298, 88 So. 913 (1921), the court noted that the proper elements of mailing were, however, necessary to invoke the presumption. In McWilliams, the suit was for commissions and fees under a brokerage contract for the sale of property, and the question of notice related to a revocation of the contract.

The New Orleans Silversmiths’ case is in accord.

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Related

Willard E. Robertson Corp. v. Benson Continental Motors, Inc.
476 So. 2d 7 (Louisiana Court of Appeal, 1985)
Ottermann v. Ganus
447 So. 2d 1075 (Supreme Court of Louisiana, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
444 So. 2d 726, 1984 La. App. LEXIS 7877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ottermann-v-ganus-lactapp-1984.