112 So. 3d 301
La. Ct. App.2013Background
- Apex sued Vidrine’s of Gonzales (VOG) and Vidrine for breach of a 2004 sublease covering property in Gonzales, seeking past due rent, taxes, and related damages.
- VOG allegedly defaulted in rent payments for September–November 2011; checks were NSF, and VOG did not cure the default.
- Mr. Vidrine signed a personal guaranty for VOG’s obligations under the sublease.
- Apex obtained ownership of the property in 2008 via an Act of Sale; the sublease was not recorded, and ownership transfer did not mention the sublease.
- Apex moved for preliminary default (March 6, 2012) and then to confirm the default judgment (March 20, 2012); the trial court awarded $64,519.57, later reduced on appeal.
- The appellate court amended damages to $55,707.31 and affirmed the default judgment as amended, with each party bearing its own appellate costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence supports a prima facie case to confirm the default and damages | Apex asserts sufficient evidence, including sublease terms and damages, to prove default and amounts due. | VOG contends evidence is insufficient, particularly for NSF damages and the plaintiff’s damages calculation. | Yes; damages reduced to 55,707.31; record supports prima facie case. |
| Whether Apex had a valid right to enforce the sublease despite an unrecorded transfer | Apex contends the term was ratified by conduct and Apex acquired rights when it bought the property. | VOG argues unrecorded sublease cannot bind third parties and Apex lacked enforceable rights. | Apex had a right of action; ratification by conduct bound the parties. |
| Whether proper notice of default was required and properly given | Apex mailed notices in accordance with the sublease’s terms, which did not require formal notice of default. | VOG claims notices were sent to the wrong addresses. | Not meritorious; sublease did not require notice of default; notices were compliant. |
Key Cases Cited
- Arias v. Stolthaven New Orleans, LLC, 9 So.3d 815 (La. 2009) (prima facie standard for default judgments; evidence required to prove on merits)
- White Haute, LLC v. Mayo, 38 So.3d 944 (La. App. 5th Cir. 2010) (proof required to establish prima facie case on default)
- U.S. Bank Nat. Ass’n v. Custer, 33 So.3d 303 (La. App. 5th Cir. 2010) (restricts review of defaults to record evidence supporting prima facie case)
- Mang v. Heisler Properties, LLC, 96 So.3d 521 (La. App. 5th Cir. 2012) (question of law whether party has right to sue)
- Restaurant Indigo, Inc. v. Thompson, 733 So.2d 1273 (La. App. 4th Cir. 1999) (unrecorded lease may be acknowledged and assumed by third parties)