Weber Property Group, LLC v. Sunburst Media-Louisiana, LLC

115 So. 3d 40, 12 La.App. 5 Cir. 804, 2013 WL 1442636, 2013 La. App. LEXIS 733
CourtLouisiana Court of Appeal
DecidedApril 10, 2013
DocketNo. 12-CA-804
StatusPublished
Cited by5 cases

This text of 115 So. 3d 40 (Weber Property Group, LLC v. Sunburst Media-Louisiana, LLC) 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
Weber Property Group, LLC v. Sunburst Media-Louisiana, LLC, 115 So. 3d 40, 12 La.App. 5 Cir. 804, 2013 WL 1442636, 2013 La. App. LEXIS 733 (La. Ct. App. 2013).

Opinion

SUSAN M. CHEHARDY, Chief Judge.

|2This is a lease dispute in which the defendant lessee appeals a default judgment against it totaling $66,927.10, comprising amounts for rent due, stipulated or liquidated damages under the lease, and contractual attorney’s fees, plus judicial interest from date of demand and all costs. We amend and affirm as amended.

FACTS

On April 29, 2011, Weber Property Group, LLC (‘Weber”), brought suit for breach of contract and damages against Sunburst Media-Louisiana, LLC (“Sunburst”). The petition made the following allegations:

On August 15, 2007, Davidson Media Louisiana Stations, LLC (“Davidson”) entered into an agreement with Weber for lease of commercial property at 3841 Veterans Blvd., Suite 201, Metairie, LA 70002, for occupancy by one of Davidson’s Louisiana radio stations, La Fabulosa. Prior to entering into the lease, Davidson had inspectors check the building for any issues. None were found, and Davidson entered into the lease for a term commencing on September 1, 2007, and ending on August 31, 2012. The rent under the lease was staggered throughout the term as follows: $2,995.00 per month for year one; $3,084.85 per |smonth for year two; $3,177.40 a month for year three; $3,272.72 per month for year four; and $3,370.90 per month for year five.

During the term of the lease, Davidson was purchased by Sunburst; the sale included the radio station La Fabulosa. In 2010, La Fabulosa employees reported to Weber that areas of the building needed repair. The petition states that Weber promptly and diligently sent workers and repairmen to repair all suggested problems, although the lease assigned responsibility to repair many of the complained-of problems to the lessee; further, although some of the complaints were legitimate, some of the complaints were unfounded or were the responsibility of the tenant itself.

Despite repeated conversations with the lessee’s representatives and attempts to [42]*42pacify their concerns, Weber received correspondence from Charles Goodyear, VP/Controller of Sunburst, announcing that Sunburst intended to terminate the lease. Weber responded that termination in this instance was not allowed and that the lessee’s obligations were still due.

Sunburst left the premises and ceased rent payments in April 2011. Weber alleged that Sunburst left the premises in disarray, without repairing damages or removing improvements it had made to the property, the majority of which were not authorized by Weber, as required under the lease.

In the petition, Weber exercised its right under the lease to declare all of the unpaid installments of monthly rent for the remainder of the term immediately due and payable. In addition, Weber sought attorney’s fees and costs as provided by the lease, which stipulates that the attorney’s fees shall not be less than the greater of $500.00 or 25% of the amount sought to be collected.

On September 1, 2011, Weber filed a motion for preliminary default, stating that the petition was filed on April 29, 2011; the sheriff served the citation and | ^petition on defendant, Sunburst, on May 19, 2011; the clerk of court had certified that the defendant had failed to appear or to file an answer; and the legal delays for so answering had elapsed. Weber requested that the court enter a preliminary default, and the court entered it on that day.

On September 30, 2011, Weber filed a first supplemental and amended petition for breach of contract and damages, asserting that it had found a prospective tenant for the property, so that the acceleration for the full amount of the rents was unnecessary. Weber lowered its demand to reflect the rent due and damages as provided in the lease. Weber also demanded attorney’s fees in the amount of “not less than the greater of $500 or 25% of the amount sought to be collected,” and all court costs.

On March 23, 2012, Weber again filed a motion for preliminary default, reciting that the first supplemental and amended petition to the original un-answered petition for breach of contract had been served on Sunburst on October 11, 2011 by the sheriff, the defendant had failed to appear or to file an answer, and legal delays for so answering had elapsed. On March 23, 2012, the trial court ordered that a preliminary default be entered against Sunburst.

On April 13, 2012, Weber filed a motion for confirmation of the preliminary default. In the memorandum in support of the motion, Weber related that shortly after the original petition was filed, its counsel had been contacted by a Craig Stewart, Esq., who stated he was the attorney for Sunburst. On May 15, 2011, Weber’s counsel faxed a copy of the petition to Craig Stewart with requested information. Thereafter, Weber’s counsel repeatedly attempted to contact Craig Stewart, to no avail. On February 23, 2012, Weber’s counsel sent a letter to Craig Stewart advising that “as a period of months has gone by without an Answer, or at [ ¡¡minimum, without any correspondence/contact from your end,” Weber would be filing a motion for preliminary default the next day, February 24, 2011.

In conjunction with the motion for confirmation of the preliminary default, Weber filed an affidavit by Skip Weber, attesting that he is a member of Weber Property Group, LLC. The affidavit recited various facts previously set out in the petitions and in the memorandum in support of the motion. In addition, the affidavit stated that the rent was not paid from April 2011 onward; that past due [43]*43rent owed for the months of April — July 2011 was $13,090.88; that the amount of stipulated or liquidated damages owed is the equal to 12 months’ rent of the last year, in the amount of $40,450.80.

ACTION OF THE TRIAL COURT

On April 18, 2012, the trial court rendered judgment stating that the matter had been submitted for confirmation of preliminary default without a hearing, as provided under La. C.C.P. art. 1702 and 1702.1, and that the preliminary default was confirmed. It awarded judgment in favor of the plaintiff, Weber, and- against the defendant, Sunburst, in the amounts of $18,090.88 for due rent, $40,450.80 for stipulated or liquidated damages under the lease agreement, and $13,385.42 for amounts “due contractually,” along with all costs of the proceeding and judicial interest from the date of the demand.1 The record shows that Notice of Judgment was mailed on April 20, 2012.

On May 22, 2012, Sunburst filed a motion for new trial on the grounds that “the judgment is clearly contrary to the law and the evidence.”

|fiThe record shows no ruling on the motion for new trial. Instead, on June 25, 2012, Sunburst filed a motion for devolu-tive appeal. The order of appeal was signed on July 9, 2012.

ARGUMENTS

On appeal, Sunburst argues the trial court erred in granting the default judgment because the calculations of damages for all three substantive areas of relief granted were materially wrong. Sunburst asserts (1) the actual damages/unpaid rent calculation was wrong because it failed to give credit for the security deposit given to secure payment of rent; (2) the stipulated/liquid damages calculation was wrong because it was calculated using the monthly rent for the last year of the lease (year five), not the year of the lease termination (year four), as required by the lease terms; (3) the trial court’s award of attorney’s fees was erroneous because it was a percentage of the first two categories of damages, but both of those categories were erroneously calculated.

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115 So. 3d 40, 12 La.App. 5 Cir. 804, 2013 WL 1442636, 2013 La. App. LEXIS 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weber-property-group-llc-v-sunburst-media-louisiana-llc-lactapp-2013.