Premier Restaurants, Inc. v. Kenner Plaza Shopping Center, L.L.C.

833 So. 2d 446, 2002 La.App. 5 Cir. 296, 2002 La. App. LEXIS 3674, 2002 WL 31662591
CourtLouisiana Court of Appeal
DecidedNovember 26, 2002
DocketNos. 02-CA-296, 02-CA-297
StatusPublished
Cited by1 cases

This text of 833 So. 2d 446 (Premier Restaurants, Inc. v. Kenner Plaza Shopping Center, 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
Premier Restaurants, Inc. v. Kenner Plaza Shopping Center, L.L.C., 833 So. 2d 446, 2002 La.App. 5 Cir. 296, 2002 La. App. LEXIS 3674, 2002 WL 31662591 (La. Ct. App. 2002).

Opinion

| .MARION F. EDWARDS, Judge.

In this case, defendant, Kenner Plaza Shopping Center, L.L.C., appeals the trial court’s finding that it had breached its commercial lease contract with plaintiff, Premier Restaurants, Inc. Kenner Plaza and Premier both further appeal the trial court’s award of damages. For the following reasons, we reverse the trial court’s determination of liability and accordingly vacate the award of damages to the plaintiff.

FACTS AND PROCEDURAL HISTORY

This case was originally filed as one of two consolidated suits brought by Premier Restaurants, Inc., (“Premier”), and Creative Foods, Inc., against Kenner Plaza Shopping Center, L.L.C., (“Kenner Plaza”), to enforce separate commercial leases for parcels of property upon which Premier and Creative Foods would construct two restaurants, a “Copeland’s Of New Orleans” and a ‘Wrap and Roll Café.”1

|aKenner Plaza Shopping Center, L.L.C., is the owner of the property and improvements located on Williams Boulevard in Kenner between West Esplanade Avenue and 33rd Street, bearing the municipal address 3300-3400 Williams Boulevard. On January 22, 1998, Premier filed a petition for declaratory judgment, specific performance and damages, claiming that on July 15, 1997 it entered into a lease agreement with Kenner Plaza in conjunction with the development of a Copeland’s of New Orleans restaurant.

Premier alleged that, shortly after the lease was executed, its project was faced with objection from other Kenner Plaza tenants and that Kenner Plaza then asked Premier to “swap” its location with that reserved for a Wrap & Roll Café being developed by Creative Foods, Inc. Premier stated that as an accommodation to Ken-ner Plaza it agreed to exchange locations as requested.

Kenner Plaza responded with an exception of no cause of action, which was denied. Following Kenner Plaza’s answer, Premier filed a Motion for Partial Summary Judgment on liability, asserting that Kenner Plaza breached the Lease by refusing to allow Premier to begin construction. On January 13, 1999, the trial court granted Premier’s Motion for Summary Judgment on the issue of liability, finding that the Lease contained a covenant by Kenner Plaza that the Shopping Center had sufficient parking, and contained no provisions that would require approval of any other tenant of the shopping center before construction or use of the leased premises could begin. Kenner Plaza appealed.2

DWhile the prior appeal of the liability judgment was pending, plaintiff had filed a Motion for Partial Summary Judgment on specific performance. Plaintiff argued that because the court had already found judgment in its favor on liability under the lease, it was entitled to specific performance as a matter of law. On August 12, 1999, the trial court granted plaintiffs Motion for Partial Summary Judgment on specific performance, “[f]or the reasons assigned in plaintiffs memorandum and oral argument, and also due to defendant’s failure in demonstrating the existence of a genuine issue of material fact as to why plaintiff is not entitled to specific perfor-[449]*449manee, the preferred remedy for breach of contract under Louisiana law.”

Motions for new trial on both partial summary judgments were heard on August 27, 1999 and denied by judgment of September 15,1999, culminating in Kenner Plaza’s second appeal.3 In that appeal, we reversed both summary judgments, finding that the attachments provided in support of Premier’s Motion for Summary Judgment on the issue of liability were insufficient to establish not only that there was a valid lease but also that the lease was breached. Because the second summary judgment was predicated upon the trial court’s finding of liability, we accordingly reversed the trial court’s Summary Judgment on the issue of specific performance as well.

While the above referenced appeals were pending in this court, a trial on damages was held in the district court resulting in a 1.25 million dollar damage award, with interest and attorney’s fees, in favor of Premier | ¡^Restaurants, Inc. That judgment was rendered on March 9, 2000, and a third appeal was taken by Kenner Plaza.4 Then, on August 29, 2000, this court set aside the two prior summary judgments regarding liability and remanded the case to the district court for a trial on that issue. In light of our holding in the third appeal, that summary judgment on the issue of liability was erroneous, we found that there was no basis for a damage award to Premier. Accordingly, we vacated the award of damages as premature and remanded the case for further proceedings.

On December 11, 2000, Kenner Plaza filed an Amended Answer, alleging, in part, that it never informed Premier that it could not build a restaurant, that it never breached the lease, and that Premier breached the lease by failing to begin construction and failing to provide plans and specifications as well as the necessary permits.

The trial forming the basis of the present appeal was held on June 20, 2001. The trial court issued its Judgment and Reasons for Judgment on September 10, 2001, awarding Premier $702,585.00, in addition to $17,682.92 per month for lost profits and 12 percent contractual interest per annum for each additional month of delay thereafter. The trial court further awarded $183,493.75 for attorney’s fees and $8,693.44 for costs.

On November 6, 2001, Kenner Plaza timely filed a Motion for Appeal, which was granted on November 13, 2001. On November 13, 2001, Premier also timely filed a Motion for Appeal from the damages portion of the judgment, which was granted on November 15, 2001.

RLAW AND ANALYSIS

In its second, third, and fourth assignments of error, Kenner Plaza argues, in essence, that the district court erred in finding that it had breached the lease at issue. Specifically, Kenner Plaza asserts that the trial court erred in finding that it was required under the lease to provide additional approval for the proposed site of Premiere’s “Copeland’s” restaurant prior to construction.

As we noted in DiBenedetto v. Automotive Cas. Ins. Co.5, our appellate re [450]*450view is what is commonly referred to as an Arceneaux6 review in that we must determine from the record whether there was a reasonable factual basis for the trial court’s factual findings and further determine whether the trial court erred as a matter of law. Additionally, as the Louisiana Supreme Court noted in Stobart v. State, DOTD,7 “a Court of Appeal may not overturn the Judgment of a Trial Court absent an error of law or a factual finding which is manifestly erroneous or clearly wrong.” In regard to appeals involving contractual disputes however, when appellate review is not premised upon any factual findings made at the trial level, but is, instead, based upon an independent review and examination of the contract on its face, the manifest error rule does not apply.8

|7La. C.C. art. 2670, defines the essential elements of a lease contract as the thing, the price, and the consent. In our independent review of the lease in this case, we note that while the requirements of price and consent under Art. 2670 are clearly delineated, the “thing” of the lease is less clearly defined.

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833 So. 2d 446, 2002 La.App. 5 Cir. 296, 2002 La. App. LEXIS 3674, 2002 WL 31662591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/premier-restaurants-inc-v-kenner-plaza-shopping-center-llc-lactapp-2002.