Baham v. Faust, 382 So. 2d 975

Baham v. Faust

382 So. 2d 975 | La. Ct. App. | 1980

CHIASSON, Judge.

Defendant-appellant Ernest Faust appeals from judgment rendered upon confirmation of a preliminary default and ordering cancellation of a predial lease for appellant’s failure, as lessee, to pay taxes on the lease property.

This matter was previously before this court in May of 1979. Baham v. Faust, 373 So.2d 725 (La.App. 1st Cir. 1979). Rehearing was thereafter granted and the case was remanded to the trial court for the sole purpose of filing into evidence certain documents which, although properly introduced, were not then part of the record.

The record is now complete and we must now consider whether the evidence introduced at the confirmation of default hearing was sufficient to establish a prima facie case.

We will not recite all of the facts of this case because they are fully and completely set forth in the previous decision, Baham, supra.

La.C.C.P. Article 1702 provides that a judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.

The basis of appellee’s claim for cancellation of the lease was the alleged failure of appellant to comply with a lease provision requiring appellant to pay any increase in ad valorem taxes on the property over the taxes in existence at the time the parties entered into the lease agreement in 1972.

The record does not contain any evidence establishing the tax base existing at inception of the lease from which the trial court could reasonably conclude that a tax increase occurred.

Having failed to prove an essential element of the claim, plaintiff-appellee did not carry his burden of establishing a prima facie case for cancellation of the lease. Wall v. Sun Insurance Company of New *976York, 189 So.2d 713 (La.App. 1st Cir. 1966), writ denied 249 La. 764, 191 So.2d 141 (1966). So concluding, we pretermit consideration of the other alleged errors of the trial court assigned by appellant.

It is ordered, adjudged and decreed that the judgment of the trial court cancelling the lease be and the same is hereby annulled, reversed and set aside, and judgment rendered herein remanding the matter to the lower court, for further proceedings according to law; all costs of this appeal to be paid by plaintiff-appellee.

REVERSED AND REMANDED.