122 So. 3d 1152
La. Ct. App.2013Background
- Toulouse (landlord) subleased the first floor/courtyard of 733 Toulouse to Bistro (tenant) under a written Sublease (May 7, 2007–July 31, 2014).
- Toulouse began renovations at adjacent 727 Toulouse in 2011 and discovered two HVAC units serving Bistro were on a platform attached to 727. Toulouse notified Bistro and removed the units on August 22, 2011 after giving notice. Bistro closed and did not reopen.
- Bistro stopped paying rent (September 2011) and filed a separate injunction suit seeking restoration of the HVAC units and rent abatement under La. C.C. art. 2715.
- Toulouse issued a notice of default (Sept. 13, 2011) and filed an eviction action (Oct. 19, 2011) after Bistro refused to surrender possession.
- In the eviction case the district court: (1) found Bistro waived a declinatory exception of lis pendens (because it was not timely pled), (2) struck an affidavit submitted by Bistro, and (3) granted Toulouse summary judgment and eviction.
- On appeal the court affirmed: lis pendens was waived, summary judgment for Toulouse was proper because Bistro unilaterally withheld rent rather than pursue available remedies, and striking the affidavit was not an abuse of discretion.
Issues
| Issue | Plaintiff's Argument (Bistro) | Defendant's Argument (Toulouse) | Held |
|---|---|---|---|
| Was the lis pendens exception waived? | Bistro: exception timely; earlier exceptions were misfiled/caption errors. | Toulouse: Bistro failed to plead lis pendens with its first declinatory exceptions and thus waived it under arts. 925/928. | Court: Waiver affirmed — Bistro did not timely plead lis pendens. |
| Did removal of HVAC permit unilateral rent abatement under La. C.C. art. 2715? | Bistro: Removal substantially impaired use as a restaurant; art. 2715 allows diminution (including total) by operation of law. | Toulouse: Sublease allocated HVAC responsibility; lessee cannot unilaterally abate rent — statutory remedies require repair deductions, lease termination, or judicial relief. | Court: Held Bistro could not unilaterally stop paying rent; art. 2715 does not authorize automatic complete diminution without seeking remedies. |
| Was summary judgment appropriate for eviction? | Bistro: factual disputes (HVAC responsibility, impairment) precluded summary judgment. | Toulouse: Bistro defaulted under Sublease (failure to pay; failure to reopen) and prior injunction ruling favored Toulouse; no genuine issue of material fact. | Court: Summary judgment affirmed — no genuine issue of material fact; eviction proper as a matter of law. |
| Was striking Bistro’s amended affidavit an abuse of discretion? | Bistro: Amended affidavit was based on personal knowledge and raised material factual disputes. | Toulouse: Affidavit contradicted earlier affidavits and contained false/inconsistent statements; prior affidavit had been struck. | Court: Striking upheld — trial court did not abuse its discretion; affidavit unreliable. |
Key Cases Cited
- Keever v. Knighten, 532 So.2d 826 (La. App. 4 Cir.) (lessee may not abandon premises and withhold rent for alleged A/C failure; unilateral self-help improper)
- Degrey v. Fox, 205 So.2d 849 (La. App. 4 Cir.) (lessee cannot unilaterally reduce rent; statutory remedies control)
- Carriere v. Bank of Louisiana, 702 So.2d 648 (La.) (parties may contractually define lease obligations; courts respect lease terms)
- Long v. Minton, 809 So.2d 1242 (La. App. 3 Cir.) (interplay of compulsory reconventional demand and lis pendens; procedural device choice depends on status of suits)