75 So. 3d 471
La. Ct. App.2011Background
- Ohm Lounge, L.L.C. leased space from Royal St. Charles Hotel, L.L.C. in a seven-year gross lease beginning January 23, 2007 for about 800 square feet adjacent to the hotel lobby.
- Rent started at $1,500 per month through December 31, 2007, then $2,000 per month from January 1, 2008 through December 31, 2013.
- Ohm Lounge opened as a lounge in late 2007 after renovations and paid rent without breach; hotel later claimed nuisance due to loud music and other disturbances.
- In July 2008, the hotel served Ohm Lounge with a five-day notice to vacate in a separate eviction proceeding; Ohm Lounge filed suit seeking declaratory judgment, specific performance, and damages.
- During eviction proceedings, the hotel presented hotel guests’ and employees’ complaints about noise and disruptions; the trial court found Ohm Lounge’s conduct violated Section 22 of the Lease (No Nuisance) and warranted eviction.
- The appellate court upheld the eviction, finding credible a record of repeated noise complaints and that Ohm Lounge failed to cure or adequately address the nuisance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohm Lounge created a nuisance in violation of the Lease | Ohm Lounge contends hotel misperceived plan; noise complaints predated Reuther | RSC Hotel proved persistent nuisance and breach of Section 22 | No manifest error; nuisance established; eviction affirmed. |
| Whether Stoner could testify and whether proffered evidence was properly excluded | Stoner should have testified as expert/fact witness | No proffer of Stoner’s testimony; exclusion proper | Issue waived; no appellate review for exclusion. |
| Whether the cure provision allowed Ohm Lounge to cure after notices | Ohm Lounge attempted minimal cures; cure rights preserved | Multiple notices without cure triggered Event of Default under Section 23/24 | Ohm Lounge had no cure right due to repeated violations; eviction affirmed. |
Key Cases Cited
- Rosell v. ESCO, 549 So.2d 840 (La.1989) (manifest error standard for factual findings)
- Canter v. Koehring, 283 So.2d 716 (La. 1973) (credibility determinations given deference)
- Pelleteri v. Caspian Group Incorporated, 851 So.2d 1230 (La.App. 4 Cir. 2003) (review of law vs. fact; deference to trial court on factual issues)
- Denoux v. Vessel Management Services, Inc., 983 So.2d 84 (La.5/21/08) (evidence not properly offered cannot be reviewed on appeal)
- McLean v. Hunter, 495 So.2d 1298 (La.1986) (proffer requirement for excluded evidence)
- Barham, Warner & Bellamy, L.L.C. v. Strategic Alliance Partners, L.L.C., 40 So.3d 1149 (La.App. 4 Cir. 2010) (proffer and appellate review limitations)