Positivelytilton, LLC D/B/A Triangle West Versus Aces Over, Inc. ( 2019 )

POSITIVELYTILTON, LLC D/B/A TRIANGLE NO. 19-CA-321
WEST
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
ACES OVER, INC.
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 788-839, DIVISION "A"
HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING
December 26, 2019
JOHN J. MOLAISON, JR.
JUDGE
Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and John J. Molaison, Jr.
AFFIRMED AND REMANDED
JJM
SJW
HJL
COUNSEL FOR PLAINTIFF/APPELLANT,
POSITIVELYTILTON, LLC D/B/A TRIANGLE WEST
Leonard M. Berins
Gerald Wasserman
COUNSEL FOR DEFENDANT/APPELLEE,
ACES OVER, INC.
Edward S. Bopp
Walter R. Woodruff, Jr.
Tyler S. Loga
MOLAISON, J.
This is an appeal by plaintiff/defendant-in-rule, Positivelytilton, LLC d/b/a
Triangle West Bar (“Positivelytilton”), taken from a grant of a rule to show cause
seeking its eviction from a building pursuant to a commercial sublease agreement.
As a result of the judgment, Positivelytilton lost its right to use the trade name
“Triangle West” and was evicted from property it subleased from
defendant/plaintiff-in-rule, Aces Over, Inc. (“Aces”). For the following reasons,
we affirm the judgment of the trial court and remand the matter to the trial court
for further proceedings.
PROCEDURAL HISTORY
On October 24, 2018, Positivelytilton filed a petition to cancel a November
20, 2016 agreement between it and Aces by which Aces placed video poker
machines in the bar operated by Positivelytilton at 10801 Jefferson Highway in
River Ridge Louisiana. The immovable property leased for use as the bar is owned
by River Ridge Investments, LLC and leased to Aces. Aces subleased the property
to Positivelytilton. The petition sought a termination of the video poker agreement
between Positivelytilton and Aces, and monetary damages for improperly charged
video license fees, rent and underpayment of revenue.
Aces filed an answer and reconventional demand in which it asserted the
parties entered into a commercial sublease for the premises on which
Positivelytilton operated the Triangle West Bar for a rate of $2500 month in 2017,
increasing to $2563 per month in 2018. Aces alleged that it rejected a payment
offered by Positivelytilton in December of 2018 because the payment rendered was
$2500, rather than the $2563 due. The reconventional demand also alleged that
Positivelytilton failed to provide Aces with required proof of insurance, failed to
pay required taxes, and made alterations to the property without permission in
19-CA-321 1
violation of the terms of the sublease. Positivelytilton answered the reconventional
demand, asserting the affirmative defense of improper cumulation of actions, and
incorporating assertions of no right/no cause of action.1
Aces filed a “Rule to Show Cause Why Lessee Should Not Be Ordered to
Surrender Possession of the Leased Property to Lessor and the Lease Terminated.”
On February 21, 2019, the trial court rendered a judgment granting the rule to
show cause in favor of Aces. The judgment terminated the lease and
Positivelytilton’s right to use the trade name “Triangle West.” The judgment
further ordered Positivelytilton to vacate the premises and the adjacent parking lot.
The judgment was amended to correct a typographical error on February 22, 2019.
Because the judgment appealed was not designated as a final judgment
pursuant to La. C.C.P. art. 1915B2, this Court ordered the matter remanded to the
trial court for a determination of whether the amended judgment should be
designated a final judgment. On October 25, 2019, the trial court rendered a
consent judgment determining that there is no just reason for further delay in the
appeal of the amended judgment and designated it as final.
FACTS
In August of 2015, Marion Seghers purchased a commercial building located
at 10801 Jefferson Highway, River Ridge Louisiana through his company, River
Ridge Investments, LLC (“River Ridge”). The property had been formerly
operated as the Triangle West Bar, and Mr. Seghers’ intent was to return the
commercial building to commerce as an investment. He purchased the business,
the contents of the property and the trade name of the business. Mr. Seghers
1
It is not clear from the record whether improper cumulation of actions and no right/no cause of action
were made by formal exceptions or were ever considered by the trial court.
2
La C.C.P. art. 1915B provides: When a court renders a partial judgment or partial summary judgment or
sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories
against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or
intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment
by the court after an express determination that there is no just reason for delay.
19-CA-321 2
explained that under the zoning regulations a bar closed for over one year cannot
be reopened. Thus, to keep the business viable he obtained an alcoholic beverage
license to operate the bar in his name.
Mr. Seghers negotiated with Dina Torrence, owner of Positivelytilton, to
open a bar and video poker establishment on the property. In early November of
2016, River Ridge and Positivelytilton entered into a five year lease for the
property and an adjacent parking lot that was to commence on January 1, 2017.
Subsequently, Positivelytilton entered into an agreement with Aces giving Aces the
exclusive right to “place, operate, maintain and service coin/credit operated video
poker devices” on the premises.
Daryl Grush, owner and operator of Aces, testified he that learned of Mr.
Seghers’ intent to reopen a bar at 10801 Jefferson Highway from one of his
employees. Mr. Grush was introduced to Dina Torrence, owner of Positivelytilton,
and was told that Mr. Seghers had leased the property to Dina Torrence’s
company. However, he discovered that Ms. Torrence did not have the financial
resources to meet the obligations of the lease or to make the improvements
necessary to accommodate the installation of the video poker machines and open
the bar. Mr. Grush reached an agreement with Ms. Torrence to purchase video
poker machines and secure the necessary licenses. He also lent her about $19,000
for improvements, the video poker machine bank, the damage deposit, and the first
month’s rent.
A meeting of representatives from River Ridge, Positivelytilton and Aces
was held on November 18, 2016, during which it was decided that the lease
between River Ridge and Positivelytilton would be voided, and the property would
be leased to Aces. It was also agreed that Aces would then sublease the property to
Positivelytilton. Mr. Seghers verified that the first lease between River Ridge and
Positivelytilton was voided because Positivelytilton did not have the financial
19-CA-321 3
means to make the necessary improvements to open the establishment or meet the
financial obligations of the lease. The record contains a handwritten document
entitled, “Mutual Agreement to Terminate Commercial Lease” executed on
November 18, 2016 that confirms the cancelation of the lease between River Ridge
and Positivelytilton.
Subsequently, River Ridge leased the premises, including an adjacent
parking lot, to Aces. It is clear this lease is an adaptation of the original lease
between River Ridge and Posivitelytilton because Positivelytilton is crossed out
and Aces is handwritten in its place. All other terms of the lease remain the same.
The lease is for the property at 10801 Jefferson Highway and the adjacent parking
lot, and provides for the use of the trade name “Triangle West Bar.” The lease is
for a term of five years, beginning on January 1, 2017 and ending on December 31,
2021. Rent was set at a rate of $2500 per month for the first twelve month term,
commencing on January 1, 2017 and ending December 31, 2017. The lease
provides for rent increases annually. Rent for the calendar year of 2018 was set at
$2563 per month, and for the calendar year of 2019, rent was set at $2627 per
month, to be paid in advance.
The lease also contains a provision that states, “Tenant understands and
agrees to pay lessor twenty percent (20%) of all video poker earnings/take during
term of lease.” According to Mr. Seghers’ testimony, he discovered after signing
the lease with Aces that it would be illegal for him to accept video poker earnings
from the bar. To remedy the situation, an addendum to the lease between River
Ridge and Aces was executed on December 1, 2016 to void the provision in the
lease that provided for the payment of video poker earnings to River Ridge. The
amendment clarified that neither River Ridge nor its member, Marion J. Seghers, is
“receiving, or has received, or will receive any video poker earnings” from Aces.
19-CA-321 4
On December 9, 2016, Aces subleased the property to Positivelytilton as
evidenced by a Lease of Commercial Property (sometimes referred to as the “first
sublease”). Again, the sublease is a copy of the original lease between River Ridge
and Aces. In this sublease, River Ridge is crossed out and substituted with Aces.
The terms of the sublease are the same as the original lease. It is for a term of five
years, commencing on January 1, 2017 and ending on December 31, 2021. The
rent is $2500 a month for 2017, $2563 per month in 2018, and $2627 per month in
2019. Mr. Seghers explained that the parties used the same lease document
because it contained the protections for the property owner that he required.
The signature page on this sublease is not included in the record. However,
a “Lessor’s Affidavit” is included and shows that Ms. Torrence’s signature was
notarized on December 9, 2016. Mr. Grush’s signed the affidavit, but his signature
is neither notarized nor dated. Thus, the actual date this sublease was executed is
not clear from the document. However, Mr. Grush’s testimony indicates it was
executed on December 9, 2016, and that testimony is not refuted.
On December 23, 2016, Aces and Positivelytilton entered into a new
Commercial Gross Lease (sometimes referred to as the “second sublease”) for the
same property, with the exception of the parking lot, for a term of ten years
beginning on January 1, 2017 and ending on January 1, 2027. Rent was set at
$2500 per month with no provision for an increase in subsequent years. This
second sublease is a short form lease and does not provide the protections for the
property owner contained in the original long form lease. It does not mention the
use of the name “Triangle West.”
It was established by Mr. Grush’s testimony that he obtained the
Commercial Gross Lease, that a member of his staff filled it out, and he caused it
to be executed by the parties. This sublease is for a term beginning on January 1,
2017 and ending on January 1, 2027 and sets a monthly rental rate of $2500 with
19-CA-321 5
no provisions for rent increases in subsequent years. It is signed by both parties
and notarized, and is for the property at 10801 Jefferson Highway, River Ridge
Louisiana. That second sublease contains the following clause;
23. Entire Agreements. This is the entire agreement between
the parties. It replaces and supersedes any and all oral agreements
between the parties, as well as any prior writings.
Mr. Grush, confirmed that the second, short form sublease between Aces
and Positivelytilton was signed after the first sublease between the parties. He
testified that this second sublease was only executed to complete the necessary
paperwork for state and parish officials to finalize the alcoholic beverage licensing
process, and never intended to supersede the first sublease. Mr. Grush explained
that his signature on the original December 9, 2016 sublease was not notarized and
the sublease could not be used for the purpose of obtaining the alcoholic beverage
license.3 Consequently, he went to Office Depot and got a short form commercial
lease to fill out strictly for the purpose of obtaining the license. His testimony that
this second sublease was never intended to supersede the first, in spite of the above
referenced clause, was not contradicted by any testimony at trial.
The bar was opened, the video poker machines were installed, and Ms.
Torrence repaid all of the funds Mr. Grush lent to her. It appears that the parties
operated under the terms of the first sublease throughout 2017. On January 11,
2018, Mr. Grush sent an email to Ms. Torrence indicating that the rent was eleven
days overdue and making a demand for payment. Ultimately in that email, Mr.
Grush agreed to allow the rent to remain at the rate of $2500 per month for the year
2018, and stated that, “all preceding (sic) years will follow the contract terms.”
Nevertheless, it appears from Mr. Grush’s testimony that Ms. Torrence paid the
3
It appears that the Mr. Grush subsequently recreated the first sublease and had his signature notarized on
December 23, 2017.
19-CA-321 6
higher monthly rent in accordance with the first sublease until November of 2018.
Ms. Torrence does not refute that claim.
Mr. Grush testified that his employee, John Keelen, called to say that the
check he picked up from Ms. Torrence in November of 2018 was in the amount of
$2500, instead of $2563. Mr. Grush instructed Mr. Keelen not to accept the check.
When Mr. Keelen conveyed this message to Ms. Torrence, she wrote a new check
for $2563. In December of 2018, Ms. Torrence again tendered a check for $2500.
Mr. Grush testified that he rejected that payment.
Correspondence between attorneys for Positivelytilton and Aces show that
counsel for Positivelytilton sent checks “under protest” in the amount of $2500
each for December of 2018, and January and February of 2019. The letters also
indicate Positivelytilton maintained it was entitled to a refund of the $2500 deposit
paid pursuant to the first sublease that was voided by the second sublease. Photo
copies of the checks are contained in the record. However, there is nothing in the
record to indicate what happened to these checks. Thus, we cannot tell from the
record if they were cashed, returned to Positivelytilton’s attorney, or whether they
remain in Mr. Grush’s possession.
The trial court rejected Positivelytilton’s argument at the hearing that the
Gross Commercial Lease executed on December 23, 2016 superseded the Lease of
Commercial Property executed on December 9, 2016 and is the valid contract
between the parties. The trial court based this decision on Positivelytilton’s
payment of the enhanced rent amount of $2563 for the first eleven months of 2018.
The trial court found the evidence established that Positivelytilton violated the
terms of the first sublease by failing to pay the rent due of $2563 for the month of
December, 2018, and by failing to pay the rent due of $2627 for the months of
January and February, 2019. For those reasons, the trial court granted the rule to
19-CA-321 7
show cause and ordered a termination of the lease and the eviction of
Positivelytilton.
LAW AND ANALYSIS
Positivelytilton appeals the ruling of the trial court and assigns six errors for
our review. Essentially, Positivelytilton asserts the trial court erred in failing to
determine that the Commercial Gross Lease executed on December 23, 2016
superseded and replaced the Lease of Commercial Property signed by Ms.
Torrence on December 9, 2016. Positivelytilton argues the trial court should have
enforced the second sublease, and ruled that it was in compliance with the terms of
that sublease. In the alternative, if the first sublease is applicable, Positivelytilton
argues the trial court erred in failing to find that termination of the sublease and
eviction was unwarranted for failure to give notice under the terms of the first
sublease, or for failure to find that it was amended to reduce the rent in 2018.
Positivelytilton argues the Commercial Gross Lease, executed on December
23, 2016 is the agreement between the parties by which compliance must be
judged. Positivelytilton takes the position that the Commercial Gross Lease
replaced the Lease of Commercial Property, apparently executed on December 9,
2016, and that it paid the correct amount of $2500 per month in a timely fashion.
Further, it argues that the $2500 deposit paid under the terms of the first sublease
should have been refunded when the second sublease was executed.
Aces’ counter argument is that the first sublease remains valid, making
$2563 the correct rent for December of 2018, and setting monthly rent at the rate
of $2627 for January and February of 2019. Aces makes the argument that
Positivelytilton complied with the terms of the first sublease throughout 2017 and
most of 2018, proving that the first sublease reflects what the parties intended.
19-CA-321 8
The trial court considered these arguments and found that “evidence
presented showed that Plaintiff (Positivelytilton) complied with the terms and
conditions set forth in the Lease of Commercial Property, including paying the
enhanced rent amount of $2563 for the first eleven (11) months of 2018.”
In Louisiana there are two mutually exclusive remedies to a lessor if a
lessee fails to pay rent as it comes due. The lessor may hold the lessee liable
for the rent due for the expired term of the lease and sue to dissolve
the lease and evict the lessee. In the alternative, the lessor may sue to
enforce the lease and to recover both accrued rentals and future accelerated
rentals if the lease contains an acceleration clause. 1001 Harimaw Court E.,
L.L.C. v. Blo, Inc., 10-860 (La. App. 5 Cir. 5/24/11), 66 So.3d 1131, 1133.
In the matter before us, Aces opted to proceed with eviction
proceedings. The lessor has the burden of proving, by a preponderance of
the evidence, a valid lease and that the violation of the lease provides
sufficient grounds for an eviction. Guste Homes Resident Mgmt. Corp. v.
Thomas, 12-0386 (La. App. 4 Cir. 5/29/13), 116 So.3d 987, 991. Appellate
courts “review the lower court's eviction ruling under the manifest
error/clearly wrong standard of review.” Second Zion Baptist Church #1 v.
Jones, 17-0926 (La. App. 4 Cir. 4/18/18), 245 So.3d 9, 12.
“Contracts have the effect of law for the parties and may be dissolved
only through the consent of the parties or on grounds provided by law.
Contracts must be performed in good faith.” La. C.C. art. 1983.
Interpretation of a contract is the determination of the common intent of the
parties. La. C.C. art. 2045, Miller v. Louisiana Gas Service Co., 638 So.2d
458 (La. App. 5 Cir. 1994), writ denied 644 So.2d 394 (La. 1994). Intent of
the parties is a matter of fact to be inferred from all of the surrounding
19-CA-321 9
circumstances. JIB Line Grp., LLC v. Legette, 14-207 (La. App. 5 Cir.
11/12/14), 165 So.3d 93, 95.
The parties can alter a lease by mutual agreement. La. C.C. art. 2676
provides in pertinent part that rent in a lease “shall be fixed by the parties in
a sum either certain or determinable through a method agreed by them.” A
contract may be modified or dissolved through mutual consent or by law.
La. C.C. art. 1983; River Oaks, Inc. v. Blue Cross of Louisiana, 595 So.2d
785 (La. App. 5 Cir. 1992), writ denied 598 So.2d 361 (La. 1992); Wise v.
Lapworth, 614 So.2d 728 (La. App. 5 Cir. 1993). Parole evidence may be
admitted to show that a written contract was modified by a subsequent and
valid verbal agreement. La. C.C. art. 1848.
Here, the trial court found that the first sublease apparently executed
on December 9, 2016 reflected the intent of the parties and is the valid
sublease. We find no manifest error in that factual finding. Ms. Torrence
continued to operate the bar, using the parking lot and the name “Triangle
West”. She continued paying the rent in accordance with the first sublease.
None of these actions indicate an intent to accept the second sublease as a
superseding agreement between the parties, or to alter the terms of the first
sublease. It wasn’t until November of 2018, when Ms. Torrence tendered
$2500 instead of $2563, that there was a challenge to the first sublease.
When told that amount would not be accepted, Ms. Torrence wrote a new
check for the higher amount in accordance with the first sublease.
Because there was no testimony offered by Ms. Torrence, we cannot
ascertain whether she considered the second sublease to be the valid,
superseding lease or whether she based her November rent payment on Mr.
Grush’s January, 2018 email reducing the rent under the first sublease. Ms.
Torrence only challenged the amount of rent due, and there is no indication
19-CA-321 10
that she discontinued use of the parking lot or the name of the bar as
provided in the first sublease. Thus, it appears she still considered the first
sublease to be valid, and an accurate intent of the parties. However, her
pleadings demanding a refund of the $2500 deposit from the first sublease,
her tender of $2500 for payments in the first two months of 2019, not
included in the adjusted rent agreement in Mr. Grush’s email and her
arguments in brief to this Court, indicate she considers the second sublease
to be valid.
Under the facts of this case, we cannot find manifest error in the trial
court’s finding of fact that the Lease of Commercial Property is the valid
sublease. It is clear that Positivelytilton abided by the terms of the first
sublease from the time it was executed in December of 2017 until December
of 2018. Postitivelytilton took advantage of the use of the parking lot, the
use of the tradename and paid the rent as set forth in that first sublease.
Further, Aces explained that the second lease was merely an instrument for
obtaining a liquor license and was never intended to supersede the first
sublease. That testimony was undisputed by Positivelytilton. Accordingly,
we affirm the trial court’s ruling terminating the sublease and ordering
Positivelytilton to vacate the premises and discontinue use of the trade name
“Triangle West.”
In its second assignment of error, Positivelytilton argues that Aces
failed to meet its burden of proof in the eviction proceeding because it made
no showing that it complied with the notice requirement in either sublease.
We are not persuaded by this argument. Both versions of the sublease
require that Aces give Positivelytilton notice of any default for non-payment
of rent and afford Positivelytilton five days to cure the default. Aces
provided notice to Positivelytilton when it rejected the rent checks in
19-CA-321 11
December, January and February as insufficient. Further, Positivelytilton
had notice of overdue rent with the filing of Aces’ the reconventional
demand.
For the foregoing reasons, we affirm the judgment of the trial court
and remand the matter for further proceedings.
AFFIRMED AND REMANDED
19-CA-321 12
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 26, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-321
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE)
LEONARD M. BERINS (APPELLANT) WALTER R. WOODRUFF, JR. (APPELLEE) TYLER S. LOGA (APPELLEE)
MAILED
EDWARD S. BOPP (APPELLEE) GERALD WASSERMAN (APPELLANT)
ATTORNEY AT LAW ATTORNEY AT LAW
101 BROOKSIDE DRIVE 3939 NORTH CAUSEWAY BOULEVARD
SUITE 101 SUITE 200
MANDEVILLE, LA 70471 METAIRIE, LA 70002