Nuccio Family, LLC v. Cooties Corp.

319 So.3d 926

NUCCIO FAMILY, LLC

v.COOTIES CORPORATION

NO. 2020-CA-0659

Court of Appeal of Louisiana, Fourth Circuit.

MAY 12, 2021

Albert J. Nicaud, NICAUD & SUNSERI LAW FIRM, L.L.C., 3000 18th Street, Metairie, LA 70002, Jeffrey M. Siemssen, NICAUD & SUNSERI LAW FIRM, L.L.C., 3000 18th Street, Metairie, LA 70002, Bret D. Guepet, Jr., NICAUD & SUNSERI LAW FIRM, L.L.C., 3000 18th Street, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLEE

Thomas J. Barbera, BARBERA LAW FIRM, 4645 Carthage Street, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods )

This appeal arises from a judgment of eviction for a commercial property located at 418 Bourbon Street and operating as a restaurant and bar. In January of 2017, Cooties Corporation began to lease the property from Nuccio Family, LLC. Over three years later, Cooties Corporation failed to timely pay rent due in April, 2020. Nuccio Family, LLC threatened eviction proceedings if the outstanding rent was not paid in full. Thereafter, Cooties Corporation made partial payments in May, June, and July of 2020. After a final warning in July, Nuccio Family, LLC, filed a rule to show cause for eviction, possession of premises, and request for expedited hearing against Cooties Corporation. After a hearing, the trial court ordered that Cooties Corporation be evicted from the property. Cooties Corporation now appeals this judgment.

Upon review, we find that the trial court did not err in granting the eviction against Cooties Corporation for failure to pay rent, as (1) the lease contract was not modified in any manner; (2) there was no custom of accepting late payments that altered the lease terms or caused Nuccio Family, LLC to be waived from strictly enforcing the lease; and (3) the doctrine of judicial control is not applicable to these circumstances. Accordingly, the trial court's judgment is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On January 19, 2017, Cooties Corporation, represented by its President, Guy W. "Trey" Olano, III, and Nuccio Family, LLC, appearing through its authorized Member/Manager, Lena Nuccio, executed a lease agreement for 418-418 ½ Bourbon Street, New Orleans, Louisiana. On April 22, 2020, Ms. Nuccio, on behalf of Nuccio Family, LLC, sent a demand letter to Mr. Olano stating that Cooties Corporation was in default of the lease due to a failure to pay the rent due April 1, 2020. The letter noted that Mr. Olano had stated on April 2, 2020, that he was unable to pay the rent due April 1, 2020, but that he would keep Nuccio Family, LLC apprised on the status of various types of assistance he was applying for due to the onset of the COVID-19 pandemic. The letter then stated that Nuccio Family, LLC had never received any update from Mr. Olano, that a late charge would now be applied to the rent, as provided for in the lease, and that a second late charge plus interest would be assessed if the rent was not received within five business days of the date of the letter. Lastly, the letter stated that should the full rent not be received within five business days, Nuccio Family, LLC would consider the lease terminated and request that Cooties Corporation vacate the premises. Cooties Corporation proceeded to make four partial payments in May, June, and July. In the interim, the parties corresponded via text and email, but did not reach an agreement verbally or in writing regarding a reduction of rent to be paid during the pandemic.

On July 23, 2020, Nuccio Family, LLC, through its attorney, sent a certified letter to Mr. Olano as notice of the need to correct three types of lease violations. The letter advised that Cooties Corporation was in default and pursuant to the lease, had five days to correct violations of nonpayment of the rent, violations in regard to building access, and violations identified by the Vieux Carre Commission ("VCC"). In listing the violations of the lease due to nonpayment of rent, Nuccio Family, LLC imputed the four partial payments made in May, June, and July to the April, May, and June rent. However, even after imputing those four partial payments, $16,903.11 was outstanding for the May rent, $20,385.12 was outstanding for the June rent, and $20,385.12 was outstanding for the July rent. Mr. Olano was advised that payment of a total of $58,293.67 by July 31, 2020, would fulfill the outstanding balance, plus interest. The letter warned that a failure to pay that balance by July 31, 2020 would result in Nuccio Family, LLC taking steps to remove Cooties Corporation from the premises.

The second type of violation noted related to a failure to provide access to the building. The lease terms gave Nuccio Family, LLC the right to walk through the premises with twenty-four hours of notice to Cooties Corporation. On July, 8, 2020, Nuccio Family, LLC requested a walk-through of the premises. The letter noted that when the request was made, Mr. Olano stated that he was on his way to Florida and would see who was available to open the premises. However, two weeks later, Nuccio Family, LLC still had not heard back from Mr. Olano regarding access and the walk-through never took place. The letter notified Mr. Olano that if the lack of access was not corrected by July 31, 2020, necessary steps would be taken to remove Cooties Corporation from the premises.

The third type of violation identified a case instituted by the VCC related to poor building maintenance and called for Cooties Corporation to conduct repairs and maintenance within a reasonable time period. Failing that, Nuccio Family, LLC would undertake corrective measures and hold Mr. Olano personally liable for the cost of such measures, plus interest.

Cooties Corporation did not pay the remaining balance by July 31, 2020, although it did make one final partial payment on August 10, 2020. On August 12, 2020, Nuccio Family, LLC filed this eviction proceeding. A hearing followed on September 18, 2020. The trial court issued a judgment ordering eviction on September 22, 2020. That judgment also awarded attorney's fees in the amount of $3,000.00 and court costs of $664.00 to Nuccio Family, LLC. On October 1, 2020, Appellant filed this timely suspensive appeal.

DISCUSSION

Standard of Review

In analyzing the judgment of a trial court in an eviction case, the appellate court reviews factual findings under the manifest error standard of review. Armstrong Airport Concessions v. K-Squared Restaurant, LLC , 15-0375, p. 9 (La. App. 4th Cir. 10/28/15), 178 So. 3d 1094, 1100. "Under a proper manifest error review, the analysis by the reviewing court should focus on whether there was clear error for lack of a reasonable basis in the conclusions of the factfinder." Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr–McGee Rocky Mountain, LLC, 14–2592, p. 67 (La. 12/8/15), 193 So. 3d 1110, 1150. This standard precludes the appellate court from setting aside the trial court's factual finding unless that finding "is clearly wrong in light of the record reviewed in its entirety". Hayes , 14-2592, p. 8, 193 So. 3d at 1115. "However, if the trial court makes one or more prejudicial legal errors that poisoned the fact-finding process which produced an erroneous result, then, a manifestly erroneous judgment must be reviewed under the de novo standard." 200 Carondelet v. Bickham , 17-0328 (La. App. 4th Cir. 10/25/17), 316 So.3d 955, 958 (unpublished). Under the de novo standard, questions are reviewed without deference to the legal conclusions of the trial court. Cleco Evangeline, LLC v. Louisiana Tax Com'n, 01–2162, p. 3 (La. 4/3/02), 813 So. 2d 351, 353.

Assignments of Error

Appellant argues that the trial court erred in three respects: (1) in holding that the agreement modifying the lease had to be in writing; (2) in refusing to hold it inequitable to allow a lessor to mislead or lull a tenant into a false sense of security by accepting late rent payments for an extended period; and (3) in failing to determine that where the lessor customarily accepted late rental payments, such custom has the effect of altering the original contract with respect to punctuality of rent payments, or in failing to determine that in such cases, the landlord's right to strict enforcement of the lease rental provisions is considered to have been waived.

1) Assignment of Error #1

Appellant's first assignment of error states that the trial court erred in holding that the agreement modifying the lease had to be in writing. This raises a legal question that would normally be subject to a de novo review. 200 Carondelet , 17-0328, 316 So.3d at 958-59. However, the judgment itself is devoid of any language stating that lease modifications must be in writing. The Appellant's statement that this issue forms part of the trial court's holding relies solely on a remark made by the trial court judge to Appellant's counsel during his direct examination of Mr. Olano.

Oral statements by a trial court judge form no part of the court's judgment and appellate courts review judgments, not reasons for judgments. Wooley v. Lucksinger , 09–0571, 09–0584, 09–0585, 09–0586, p.77 (La. 4/1/11), 61 So. 3d 507, 572 (quoting Bellard v. American Cent. Ins. Co., 07–1335, 07–1399, p.25 (La. 4/18/08), 980 So. 2d 654, 671 ). "Judgments are often upheld on appeal for reasons different than those assigned by the district judges." Id. In this case, Appellant points to an oral statement by the trial court judge as part of the holding. The statement took place during direct examination of Mr. Olano by Appellant's counsel. After noting that the counsel's line of questioning was not advancing his case and that he needed to prove that a modification of the lease took place, the trial court judge stated "let's get to where it shows something in writing that they did that." The counsel responded that there is no requirement that a lease modification be in writing. The trial...