Western Sizzlin Corp. v. Greenway

821 So. 2d 594, 2002 La. App. LEXIS 1891, 2002 WL 1285312
CourtLouisiana Court of Appeal
DecidedJune 12, 2002
DocketNo. 36,088-CA
StatusPublished
Cited by7 cases

This text of 821 So. 2d 594 (Western Sizzlin Corp. v. Greenway) 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
Western Sizzlin Corp. v. Greenway, 821 So. 2d 594, 2002 La. App. LEXIS 1891, 2002 WL 1285312 (La. Ct. App. 2002).

Opinions

B GASKINS, J.

The plaintiff, Western Sizzlin Corporation, appeals from a trial court judgment in favor of the defendants, Kenneth A. Greenway, Joy Greenway Groves, Green-way Investments, Inc., J & H Enterprises, Inc., KJOY, Inc., East Gate Western Siz-zlin, Inc., and Western Sizzlin Steakhouse West, Inc., granting the defendants’ rule to evict the plaintiff from five of its restaurant properties in the Shreveport and Bossier area. For the following reasons, we affirm.

FACTS

The Greenway family owns five restaurants located on East 70th Street, Mansfield Road, and Greenwood Road in Shreveport, and on East Texas Street and Benton Road in Bossier. These were Western Sizzlin franchises, operated by the Greenways since the middle 1970s. In 1997, they entered into an agreement with the Western Sizzlin Corporation (WS), leasing the five restaurants to the compa[596]*596ny, which then became responsible for managing and operating them. The lease was entered on October 17, 1997, for a primary term of five years, with the possibility of renewal for three additional five-year terms. The lease initially called for a monthly rental of $30,000, with an obligation to make $500,000 in improvements within the primary term of the lease. The lease also required that WS keep the leased premises in first class condition.

WS claimed that it spent more than two million dollars remodeling the restaurants on East 70th Street, Mansfield Road, and East Texas ■ Street. The restaurants on Greenwood Road and Benton Road were not remodeled and were not profitable. In March 2001, WS representatives met with 12Kenneth Greenway to discuss plans to close those two locations and find subles-sors for them. Subleasing the properties required permission from the defendants.

The defendants alleged that WS had not abided by the terms of the lease. On March 29, 2001,- the defendants sent a letter to WS outlining the deficiencies in the company’s performance under the lease, including untimely payment of rent, problems with construction of improvements, failure to maintain leased premises in a first class condition, and failure to maintain adequate insurance. The defendant also complained that the roofs of the restaurants were not repaired timely after settlement of an insurance claim. The defendants agreed that they would consider the subleases if these areas of concern were addressed.

David Hoof, vice president of operations and Chief Operating Officer of WS, came to Louisiana and met with Kenneth Green-way concerning the problems with the various properties. Other letters were then passed between lawyers for the parties.

On July 23, 2001, Greenway again sent a letter to Hoof, outlining problems in the restaurants. Greenway cautioned that the list of items needing repair, replacement, and refurbishment was not inclusive. The list of deficiencies in the five restaurants included the need for paint, uneven flooring, leaks, missing equipment, inoperable irrigation systems, probléms with the parking lots, and dead shrubbery. He also noted damage to ceiling tiles, fences, windows, and sheetrock. Greenway pointed out that there was a lack of refrigeration and air conditioning in the Benton Road restaurant.

1 ROver a month after receiving the letter, on August 30, 2001, WS sent memos to restaurant managers with directions to deal with some of the issues. On September 21, 2001, the defendants sent a letter placing WS in default and exercising the option to terminate the lease.

Relations between the parties deteriorated and -mediation required by the lease was not successful. On October 31, 2001, WS filed suit against the defendants, seeking permission to sublet two of the properties, claiming entitlement to the proceeds from billboards placed on the property and asserting that the defendants were responsible for making repairs to the roofs on the two locations to be subleased. On November 2, 2001, the defendants countered with a suit to evict the plaintiff for breach of the lease agreement. The defendants essentially argued that WS failed to keep the premises in first class condition. The plaintiff claimed that it had abided by the terms of the lease and urged the court to apply the doctrine of judicial control to hold that it was not in default of the lease.

The matter was heard by the trial court on November 14, 2001. On November 26, 2001, the trial court entered judgment in favor of the Greenways on their claim to evict WS. The plaintiff was ordered to immediately deliver possession of the [597]*597premises to the defendants. In written reasons for judgment, the trial court essentially found that WS breached the lease in failing to keep the restaurants in first class condition. The court stated that the plaintiff was given written notice on July 23, 2001 of certain conditions that the defendants considered violations of the lease. The court found that the plaintiff failed to make the required repairs. It also held that |4the facts did not rise to the level to warrant judicial reformation of the written terms of the lease. According to the court, the defendants were entitled to a judgment of eviction, and ordered the plaintiff to deliver the premises. The plaintiff appealed suspensively.

BREACH OF LEASE AGREEMENT

WS contends that the trial court erred in finding that it breached the lease agreement. This argument is without merit.

The factual findings of a trial court will not be disturbed absent manifest error. Gibbs v. Harris, 35,239 (La.App.2d Cir.10/31/01), 799 So.2d 665; Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993). Reversal of findings of fact on appeal requires that (1) the appellate court find from the record that no reasonable factual basis exists for the trial court’s finding, and (2) the appellate court determine that the record establishes the finding is clearly wrong or manifestly erroneous. SDT Industries, Inc. v. Leeper, 34,655 (La.App.2d Cir.6/22/01), 793 So.2d 327, writ denied, 2001-2558 (La.12/07/01), 803 So.2d 973. The issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Jackson v. Lare, 34,124 (La.App.2d Cir.11/1/00), 779 So.2d 808. The fact finder’s choice between two conflicting permissible views of the evidence cannot be manifestly erroneous. Stobart v. State, through Department of Transportation and Development, supra. Where testimony conflicts, the fact finder’s reasonable evaluations and reasonable inferences of fact should not be | (¡disturbed upon review by the appellate court. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Contracts have the effect of law for the parties and may be dissolved only through consent of the parties or on grounds provided by law. Contracts must be performed in good faith. La. C.C. art. 1983.

The neglect of the lessee to fill his engagements may give cause for dissolution of the lease, in the manner expressed concerning contracts in general. See La. C.C. art. 2729.

La. C.C.P. art. 4701 provides in pertinent part that when a lessee’s right of occupancy has ceased because of termination of the lease for any reason, and the lessor wishes to obtain possession of the premises, the lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee.

Several provisions of the lease at issue here are pertinent to our inquiry. Section 10 provides that:

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Bluebook (online)
821 So. 2d 594, 2002 La. App. LEXIS 1891, 2002 WL 1285312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-sizzlin-corp-v-greenway-lactapp-2002.