SALES AND LEASES 2016

Marie A. Moore Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, 28th Floor New Orleans, Louisiana 70112

No significant new were enacted this year, so our recent developments summary will focus on the case .

I. LEASE

A. No Oral Lease Created

Ranson v. Cooper, 2016-0029 (La. App. 1 Cir. 9/19/16), 2016 WL 5173506. Prospective tenant for mobile home sent Landlord $850 then $425. When the tenant rejected the proposed mobile home and another one that the landlord offered, the landlord refused to refund these amounts. The trial court held that because the text messages between the parties did not show clearly that a lease had actually been created, no lease was created. The $850 was an advance deposit in return for the landlord taking the trailer off the market, and the $425 was advance rent that should be returned to the tenant. The landlord appealed, asserted that an oral lease had been created and it was entitled to retain the $425 and to recover additional amounts of lost rent. The appellate court recognized that a lease may be made orally, but that when there is no meeting of the minds, there is no . Whether a lease has been created is a question of fact, and it upheld the trial court’s determination that no oral lease had been created.

B. Landlord’s Remedies

KM, Inc. v. Weil Cleaners, Inc., 50,209 (La. App. 2 Cir. 1/13/16), 185 So.3d 112. In January 2001, KM leased a unit in Claiborne Square Shopping Center to Weil for a 5-year term. The lease stated that rent was due on the 1st of the month and was late after the 10th of the month. Weil experienced water leakage in the space, and this leakage became worse after KM removed an awning. On August 22, 2014, KM tacked a 5-day notice to vacate no the door of the space. After this notice to vacate, Weil sent KM a payment on August 26, 2014, but KM did not open the certified letter containing the rent. KM filed a rule for eviction on September 2, 2014. KM’s president testified that in 2014, rent was late 6 of the 8 months, and she did not receive the July rent until July 29, 2014. Weil’s owner testified that he withheld the rent to leverage KM to fix the leakage situation and that he had spent money to stop the water from coming in the door but had not asked for reimbursement. At the time of trial, Weil had tendered payment in full for all past-due rent and for the upcoming month’s rent. The trial court dismissed KM’s eviction because KM’s acceptance of late payments waived KM’s right to evict Weil without prior, unequivocal notice that late payments would not be accepted in the future. The appellate court agreed, explaining that (i) it is inequitable to allow a lessor to lull a tenant into a false sense of security by accepting late payments over a period of time, then without demand for timely payment, to cancel the lease for nonpayment of rent, and (ii) dissolution of a lease for nonpayment of rent is subject to judicial control, and under La. Civil Code art. 2013, in an action involving judicial dissolution, the court can grant an additional time for payment.

Richard v. Khalif, 2015-685 (La. App. 3 Cir 2/3/16), 185 So.3d 259. Residential landlord filed suit to evict a tenant that had paid most of the rent under a “lease to own” agreement. Nora Richard asked the landlord Khalif to lease land to her son, Bob, to as a residence, but Khalif refused because Bob had a criminal record. Then in February 2010, Khalif and Nora signed a lease with an option to purchase. Nora provided $500 down and agreed to pay $150 a month for 36 months, with an option to purchase for $500 at the end of the term. Bob then purchased a mobile home for the site, spent a substantial sum to prepare the land and install a sewer system, then moved into the with his fiancé and children in August 2010. The indicated that Khalif knew that Bob and his family were living on the property since Khalif lived nearby. Nora made the monthly payments until July 2012, then shortly before the expiration of the term, Khalif began rejecting payments and served Nora with an eviction notice. Nora sought specific performance ordering Khalif to execute the sale because all payments had been made. The trial and appellate courts rejected Nora’s claim for equitable relief because she did not have clean hands. The lease prohibited sublease or granting the use of the premises to another person, and Louisiana law permits a landlord to obtain dissolution for prohibited use of the premises – Nora had violated the use provision of the lease, so Khalid was entitled to dissolution. Also, Nora had acted in bad faith because she signed the lease and permitted Bob to occupy the property after Khalif had specifically refused to enter into a lease with Bob because he had a criminal record. The court explained, “harm to a party who has acted in bad faith cannot thereafter be remedied by principles of equity.” 185 So.3d at 263.

Van Mol v. Beasley, 2015-869 (La. App. 3 Cir. 2/3/16); 184 So.3d 280. Beasley leased property from Van Mol for 24 months to house his employee, Bamer, and his family. The Lease stated that the term was from October 1, 2012 to October 1, 2014, but the lease also contained a provision stating that the lessor had to receive 60 days’ notice before move out. When Bamer moved out with 60 days prior notice in July 2013 and Van Mol sued Beasley for rent for the rest of the original term, Beasely claimed that this provision had given him the right to terminate early with 60 days’ notice, and that Van Mol had accepted this termination when she inspected the property and accepted the keys from Bamer on July 29, 2013. Van Mol asserted that the 60- day move-out notice provision simply stated a condition that the tenant had to satisfy to receive the return of its deposit. The trial and appellate courts agreed with Van Mol. The court held that Van Mol was entitled to rent for the remaining year of the term because she had not re-leased the property – Van Mol claimed that she had cleaned it and was holding it for future employees of Beasley. Notwithstanding the cases holding that a landlord must mitigate its damages, the trial and appellate courts observed that the lease expressly provided the landlord with the default remedies of declaring the remaining rent installments immediately due and payable or declaring the lease terminated – and they held that Van Mol had elected to declare the rent due rather than terminating as permitted by the lease: “Since she did not choose to terminate the lease, Mrs. Van Mol could not re-lease the property without also being in breach of the lease. Mrs. Van Mol was not required to breach the lease in order to mitigate damages.” 184 So.3d at 287. Inherent in this holding is a finding that landlord did not deprive Beasley of possession since the property was always available for occupancy by his employees – perhaps there would have been a different

2 result had the tenant leased for its own occupancy and had the tenant made clear that it was terminating when it gave the move-out notice.

McCoy v. Housing Authority of New Orleans, 2016 WL 4592162 (E.D. La. 2016). This is a claim by McCoy that she was wrongfully evicted from a Section 8 apartment in a housing complex owned by Abundance Association and managed by IRMC – but McCoy’s suit was against HANO. The complex owner and manager had based her eviction on its claim that she violated the complex’s one-strike policy by being publicly intoxicated and involved in a fight on the complex grounds. The Fourth Circuit had reversed the eviction when it found that the criminal charges against McCoy had been dismissed. McCoy never lost possession of the apartment and HANO’s rent assistance to McCoy was never terminated. McCoy also sued the police officer that arrested her and HANO for an alleged conspiracy to arrest her unlawfully and to violate her civil and due process rights. The court granted summary judgment in favor of HANO.

Romero v. Cola, 2015-1058 (La. App. 3 Cir. 5/25/16), 193 So.3d 418. Plaintiff Landlord sued Tenants (the Colas) for past due rent, but the trial court held that Landlord had not proved the amount of the rent. Landlord testified that the rent, which was negotiate by her deceased husband, was $600 per month, and she produced requests for admission stating that the rent was $600 per month that had not been responded to by the Tenants (who were unrepresented). The appellate court recognized that these requests were deemed admitted on the $600 per month rent amount because there was no response. However, it held that the unanswered requests were not enough to prove the aggregate amount of past-due rent, and Landlord’s books and testimony were confusing on this point. The court then reconciled what it could and awarded the Landlord the amount that was justified by written receipt books produced by the Landlord showing deficiencies in the payments.

Stroope v. Smith, 50,685 (La. App. 2 Cir. 5/18/16); 199 So.3d 612. Leah Stroope and her husband, Stephen Alexander, purchased a business of creating memorial graveyard monuments and vaults and leased the building in which this business operated from Bobby Smith. Stroope was an attorney, and she prepared the lease, purchase agreement, and non-compete agreement, which was signed in December 2013. The purchase agreement required payment of the $30,000 purchase price in installments, and the non-compete also required payments of $220,000 in monthly amounts over 10 years. Stroope and Alexander operated the business until Alexander died on March 20, 2014. Ms. Stroope gathered the company’s books and went to Arkansas to visit her parents. On March 28, 2014, Smith learned that another monument company had picked up a truckload of materials, and Stroope told him that she was transferring all monument to another monument company for completion. In April 2, 2014, Stroope allegedly told Smith that she had no money to pay – she had paid no rent or installments under ten non- compete – and that she did not plan to return. Smith went to the property on April 3, 2014, and found the electricity and water disconnected, the office cleaned out, and the employees not working. Smith assumed that Stroope had abandoned. Smith then re-entered the property and cleaned it (allegedly to re-let), hired workers, returned 5 burial vaults previously sold to Stroope and Alexander to the original seller hoping to have the purchase price returned, and entered into and performed a pre-cast job for a customer, using the truck he had sold to Stroope and Alexander. On April 1, 2014, Stroope owed Smith between $25,000 and $40,000, and Smith had

3 garnished the company’s accounts receivable, so that Stroope could not pay. At that point, Stroope sued Smith for breach of contract, alleging that she had not abandoned and that Smith had converted the assets of the business and used the leased premises for his own use in bad faith. Smith then padlocked the gate of the business and barred Stoope’s father from the site. The trial court held that Stroope had not abandoned and was not in default when Smith re- entered the property, that Smith had unlawfully resorted to self-help and breached the lease and the non-compete, that Smith had impeded Stroope’s ability to pay him the money owned, and that when Smith re-entered the property, he relinquished his right to future rents and claims – he was entitled only to the monthly rent, asset purchase payments, and non-compete payments due for the period prior to his re-entry. The appellate court upheld the trial court’s finding that Stroope had not abandoned the leased property – she was actively trying to assign parts of the business to competitors, and it was unjustified for Smith to assume, just 10 days after Stroope’s husband’s death, that she intended to abandon the business. He should have resorted to the judicial eviction process. As to Smith’s claim that Stroope owed him the full $250,000 for the asset sale because the non-compete was just a tax accommodation, the appellate court also affirmed the trial court, holding that Smith had to live with the contract he signed selling the assets for $30,000 – he had no right to take these assets and use them for his own purposes without judicial process and no right to breach the non-compete agreement.

Bernard v. Professional Property Management, 2016-215 (La. App. 3 Cir. 9/28/16), 2016 WL 5404570. In 2013, Bernard leased a lot in a mobile home park from Nsue for $450 per month. Bernard paid only $200 in rent for September 2015 and paid no rent for October 2015. Bernard was given a late rent notice in September demanding payment of $100 plus a $60 late charge. On November 3, 2015, Bernard received a 5-day notice to vacate. She then sent PPM (Nsue’s property manager) a payment for October rent. On November 10, the Justice of the Peace issued to Bernard a Rule to Show Cause why she should not be evicted, which was returnable on November 13. The parties appeared before the Justice of the Peace on November 13, and that court granted the eviction. Bernard appealed. First she claimed that the notice to vacate was insufficient because it did not describe the reasons for eviction; however, the appellate court confirmed that La. Code Civ. P. 4701 does not require the grounds for eviction to be explicitly stated. She then claimed that the Justice of the Peace did not provide 3 full days before the return date because November 11 was Veterans’ Day, a legal holiday, but she did not object before the Justice of the Peace, and waived this complaint. Finally, she claimed that she had paid rent, but the appellate court found that the trial court was not clearly wrong in ruling that Bernard had failed to pay rent on time, and upheld the eviction. With respect to the rent payment that was received by PPM after it filed its eviction, the appellate court noted that PPM did not deposit the money until after the Justice of the Peace had granted the eviction – the Landlord was permitted to accept the money once the judgment of eviction had been rendered.

C. Tenant’s Remedies

Easterling v. Estate of Miller, 2014-1354 (La. App. 4 Cir. 12/23/15), 184 So.3d 222. Tenants (Easterling and Food Art) filed suit claiming that the Landlord of 801 Carondelet St. had breached the lease by reason of roof leaks and vegetation growing on the outside of the building and also sought an injunction prohibiting Landlord from instituting an eviction, from interfering with Tenants’ possession, and from failing to accept rent payments and lease extensions.

4 Because it found that the Tenants had made a prima facie case that there were no grounds for eviction and that a suit for eviction would cause irreparable harm to Tenants’ business reputation, the trial court granted the preliminary injunction, and the appellate court affirmed. The appellate court recognized that an injunction cannot prevent the filing of a suit, but it then held that the trial court was within its rights to preserve the status quo until trial on the merits by prohibiting actual eviction – Landlord could go ahead and file its eviction action (Landlord had filed its eviction action as a reconventional demand before the preliminary injunction was issued), but Landlord could not carry out the eviction until the Tenants’ claims were resolved.

Jefferson Community Health Care Centers, Inc. v. Jefferson Parish Government, 2016 WL 3997025 (E.D. La. 2016). Tenant Jefferson Community Health Care Centers, Inc. (JCHCC), sought a preliminary injunction to stop the enforcement of two resolutions passed by the Jefferson Parish Council, as landlord, declining to renew the Cooperative Endeavor Agreements (CEAs) permitting it to occupy certain premises at no charge to serve medically underserved populations. Even though the CEA/lease had ended and JCHCC had no right to occupy the premises, the court enjoined the removal of JCHCC from the premises until Jefferson Parish selected a vendor to serve the medically underserved populations of Jefferson Parish. This decision is being appealed.

Lobell v. Rosenberg, 2014-0060 (La. App. 4 Cir. 1/27/16), 184 So.3d 850. The Louisiana Supreme Court upheld the trial court’s termination of the Lease in an earlier decision, leaving for appeal the trial court’s award to Landlord of $3,230,162 in Katrina restoration costs. The trial and district court on appeal found that Tenant was liable to Landlord for these replacement costs of the property and that the estimates presented to the trial court sufficiently substantiated the replacement cost. In dissent, Judge McKay stated that actual cash value, not replacement cost, should have been used, and that the award incorrectly included costs of betterments in the leasehold improvements.

D. Denial of Peaceful Possession

A Bar and Grill with a Bite, Inc. v. Howard Hughes Corp., 2016 WL 6695432 (E.D. La. 11/15/16). Plaintiff, owner of The Crazy Lobster and Time Out which operated in the Riverwalk, sued Riverwalk and its manager Quinn for denial of peaceful possession, harassment, and bad faith failure to renegotiate a lease extension. Defendants removed the case to federal court claiming that the non-diverse manager had been fraudulently joined. The federal court held that there was the possibility of recovery from the non-diverse manager on the claim that he had personally and outside the scope of his employment blocked the entrance of the restaurants and harassed them. Consequently, the joinder was not fraudulent, and the case should proceed in the state court. In the course of this decision, the court observed that a tenant’s peaceful possession is denied if the landlord blocks its access resulting in a decrease in profits, citing the 1926 case, Dehan v. Youree, 109 So. 498 (1926).

Teen Town Productions, L.L.C. v. Scurlock, 15-454 (La. App. 5 Cir. 12/23/15), 182 So.3d 1208. When a Tenant had clearly abandoned the space and left its property in the space, the court did not hold the Landlord liable for (i) breach of the lease when it changed the locks after several months or (ii) conversion of property that the Tenant could not prove had been in the

5 space when the Tenant left. Teen Town, owned by Schaffer, leased property on David Drive in Metairie from Scurlock for the purpose of operating a teen club (Tremors). For 6 months starting in January 2003, the club was successful and paid rent, then a shooting occurred (July 5, 2003), causing Teen Town to stop operating and to stop paying rent. In August 2003, Schaffer told Scurlock that he intended to renew the lease under a different entity and to start operating a reception hall in the space, but Scurlock testified that he did not agree to renew, and no writings showed a continuance of the lease. Schaffer did not remove or attempt to remove Teen Town’s property from the space. Scurlock changed the locks in December 2003. In July 2004, Teen Town went into the space to inventory the property and collect business records, but Schaffer testified that at that time, much of the property and records were missing. Scurlock testified that it had permitted equipment lessors and third party vendors retrieve their property, and that not much remained after that. Teen Town sued for conversion and breach of lease, claiming loss of profits and loss of business opportunity. The trial court found in favor of Scurlock, and the appellate court agreed. The court found that Teen Town had not proved that Scurlock had taken its property or breached the lease, and there was no evidence of the value of the property allegedly taken or of damages from breach of the lease. The court found that the premises had been abandoned by December 2003 when the locks were changed, and the lease expired December 31, 2003. Scurlock did not breach the lease because Teen Town had abandoned the space, and Teen Town did not show any damages from not being able to access or use the space during the last part of December. As to the conversion claim, the court found that Teen Town’s informal, after-the-fact inventory and valuation were based on speculation and not admissible, so there was no evidence of property loss.

5876 57th Drive, L.L.C. v. Lundy Enterprises, L.L.C., 2016 WL 366550 (E.D. La. 2016). Tenant notified Landlord that Pizza Hut had terminated all of Tenant’s franchise agreements and that this forced closures and eliminated Tenant’s cash flow. In January 2011, Tenant stopped paying rent and stopped operating in the premises. In February and March 2011, Landlord leased part of the premises to a third party and changed the locks. In August 2011, Landlord formally placed Tenant in default. In February 2012, Landlord leased the entire premises to a third party, and in August 2012, Landlord sent Tenant a notice of termination. In July 2013, Landlord sued Tenant for breach of the lease, and in defense, Tenant asserted that Landlord denied it peaceful possession and unlawfully evicted it from the property. The court recognized that Landlord had not followed the procedures required in the lease or Louisiana law before leasing the property to a third party in February 2011, but observed that a Landlord does not have to follow eviction procedures when the Tenant has abandoned. Tenant claimed that it did not intend to abandon and it had equipment in the property – the Lease contained no continuous operation requirement. Because whether abandonment had occurred was an issue of material fact, the court denied summary judgment.

E. Validation of lease by Public Benefit Corporation

Two Canal Street Investors, Inc. v. The New Orleans Building Corp., 2015-0924 (La. App. 4 Cir. 4/20/16). An unsuccessful bidder for the lease of the World Trade Center sued the New Orleans Building Corp. to block the lease to the successful bidder. In this case, the Plaintiff’s proposal set out the highest projected fixed rentals. The court recognized that when reviewing administrative agency decisions, the agency’s decisions will not be reversed unless

6 there is a clear showing that the action was arbitrary and capricious. The court also recognized the public benefit corporation exception to the public bid law under La. R.S. 41:1215 and 41:1211 – the lease is valid as long as it was negotiated and let in accordance with objective criteria involving a balancing of factors including not only highest rent but also quality, financial stability and economic importance to the primary objective of stimulating other commercial activity (among others), and as long as it provided for a fair and equitable return of value. The court held that in this case, the lease was valid because the NOBC had properly balanced the strong reputation of the Four Seasons and other factors against the Plaintiff’s rent projections (which apparently concerned the NOBC committee because they were not supported by third party commitments), and the lease provided a fair and equitable return of revenue.

F. What is Sufficient Rent?

Villenurve v. New River Shopping Center, 2016 WL 1056577 (M.D. La. 2016). More than 30 years after a lease was executed, the successor trustee to the lessor trust claimed that the rent was too low to constitute real rent. The court did not agree. It discussed Louisiana law holding that rent of $1.00 per year and other good and valuable consideration or the like is not sufficient consideration to support a lease. In that case the presumption is that the parties did not intend that the trifle named should ever be paid at all, and the situation is looked upon as being as if no amount has been named.” Id. at 3 (quoting Murray v. Barnhardt, 42 So. 489 (La. 1906)). In this case, the rent stated was not a trifling amount that could be viewed as a gratuity or donation, and the parties actually intended that it be paid. For that reason, it was found to be real rent for the lease.

G. Premises Liability

Vail v. Schiro Brothers Shoe Store, Inc., 16-47 (La. App. 5 Cir. 5/12/16), 193 So.3d 342. A customer tripped over a yellow step and was injured in the parking lot of Schiro Brothers on West Esplanade. Who was liable – the tenant or the landlord? Each claimed that the other had custody of the step. The lease said that the landlord was responsible for the repair and maintenance of the exterior of the property, including the parking lot, but the Landlord asserted that the lease was ambiguous as to who was responsible for the parking lot and that the Tenant had agreed to indemnify it for all damages arising out of its use of the premises. The trial court granted summary judgment dismissing the claims as to Tenant, holding that Landlord had custody of the step and had responsibility for repairs to the parking lot, and the appellate court agreed. The lease made the Landlord liable for repairs to and maintenance of the exterior of the premises, including the parking lot, and the Landlord confirmed that it inspected the parking lot once a week and did, in fact, perform all needed repairs, including painting the step. The lease also prohibited Tenant from making changes to the leased premises without the Landlord’s consent and from using the sidewalk other than for ingress and egress access to the premises. Although Tenant was obligated to reimburse Landlord for some repair costs, Landlord had the exclusive right to repair and alter the parking lot. This showed that the Landlord retained control and custody of the exterior, including the defective step. Although Tenant agreed to indemnify Landlord for damages arising from its operation of the business, that language excluded damages arising from Landlord’s negligence, and this accident necessarily arose from the Landlord’s negligence rather than Tenant’s negligence.

7

Plaia v. Stewart Enterprises, Inc., 2014-0159 (La. App. 4 Cir. 10/26/16), 2016 WL 6246912. Plaintiff was injured when leaving her child at daycare at the First Baptist Church of New Orleans (FBCNO). A traffic pole gate swung into the road and pierced the windshield. The land was owned by Fireman’s Charitable (FCBA), leased to S.E. Funeral Homes (“SEFH”), and subleased to FBCNO (this sublease was the “Sublease”). FCBA also leased land to FBCNO that served as an access road from the church to Canal Boulevard (the “Cherry Street Lease”). FCBA had required swinging arm barricade gates to prevent access from the road into the cemetery after 5:00 p.m. FBCNO prepared and FCBA and SEFH approved the plans, which included no tie posts initially – the tie posts were added after a 2004 accident and at the time of the accident, were secured by a snap bolt. The sexton of the cemetery opened and closed the gates every day. On the date of the accident, SEFH personnel were present cutting the grass. The court found that FBCNO owed indemnity to FCBA and SEFH under the sublease and lease. In the sublease and lease, FBCNO agreed to keep all improvements on the leased property in good condition and repair, agreed to indemnify its Landlord from all accidents arising from the access roadway or use of the premises by FBCNO or its invitee unless arising from the act or negligence of that Landlord, and assumed responsibility for the condition of the premises. However, the appellate court took a different approach – it found that although the tie post was on property covered by the Sublease, the gate itself was the defective item, and it was on the property covered by the Cherry Street Lease. Consequently, SEFH (the jury had found 15% at fault) was not entitled to indemnity because it was not a party to the Cherry Street Lease. The appellate court also amended the judgment requiring FBCNO to indemnify the FCBA - the jury had found FCBA 42.5% at fault, and FCBA was not entitled to indemnity to the extent that the accident was caused by its own fault. The court relied on the cases that hold that a party is not entitled to indemnity for its own negligence unless this intention is expressed in unequivocal terms. The appellate court however determined that FBCNO and its insurer had an obligation to defend FCBA, even against allegations of FCBA’s negligence, because FBCNO had agreed to name FCBA as an additional insured as to matters arising out of FBCNO’s operations – the accident arose out of FBCNO’s operation because it had partial custody and control of the gate and the Plaintiff was on the property because of FBCNO’s day care center. The court also held that FBCNO’s obligation to “defend” included in it the obligation to pay attorneys’ fees (even though the phrase attorneys’ fees was not used), but that FCBA could not recover attorneys’ fees for pursuing its claim for indemnity or for establishing the duty to defend. Finally, the court observed that it thought that FBCNO had an excellent argument to reduce or eliminate its liability based on an incorrect allocation of liability to it, but that because FBCNO had not appealed the allocation of responsibility, the court could not overturn it.

Miller v. Threshold Bm, L.P., 2016 WL 3440618 (W.D. La. 2016). The court granted summary judgment in favor of Landlord in a suit by a visitor to a Tenant’s apartment based on a sexual assault while in the apartment complex. The court found that the Plaintiff did not show that the criminal act was reasonably foreseeable, and observed that the apartment complex owner is not an innkeeper that owes a higher duty.

Giles v. Wal-mart Louisiana LLC, 2016 WL 2825778 (E.D. La. 2016). Plaintiff slipped and fell in a hole in the parking lot of the Winn-Dixie on Tchopitoulas. Among the other defendants, Plaintiff sued the Industrial Development Board (the IDB) and the store manager.

8 The court found that both the manager and the IDB were improperly joined, and there was no diversity. Although the IDB was the owner and lessor of the property, the Plaintiff did not show that the IDB knew or should have known of the allegedly defective condition.

Pillow v. Roymar Limited Partnership, 15-730 (La. App. 5 Cir. 6/30/16), 197 So.3d 348. Plaintiff, who was a Jefferson Parish employee, allegedly slipped and fell on stairs in a building leased by Jefferson Parish from Roymar, allegedly by reason of a loose handrail. Roymar pointed out that the Parish had contractually assumed Roymar’s legal responsibilities for damages under La. R.S. 9:3221. Roymar moved for summary judgment, which the trial court granted. The appellate court affirmed this grant of summary judgment because with the assumption of liability Roymar would not be liable unless Plaintiff proved that Roymar knew or should have known about the loose handrail (even though there were code violations). Plaintiff did not show that the Parish had complained about the stairway or the handrail, and Roymar’s manager testified by affidavit in his deposition testimony that he used the stairs when he was in the building but did not notice that the handrail was loose and that he had no personal knowledge of the loose handrail. The court explained that under La. R.S. 9:3221, Roymar had no duty to inspect the leased property, and its twice a year informal inspections did not create an issue as to whether it knew or should have known about the loose handrail.

Mabile’s Trucking, Inc. v. Stallion Oilfield Services, Ltd., 2015-0740 (La. App. 1 Cir. 1/8/16), 185 So.3d 98. Tenants sued Landlord for alleged hydrocarbon contamination that made the crawfish generated from a crawfish lease unfit for sale or consumption. The suit was based on an oil well operated by Landlord and the oil well operator, Stallion Oilfield, adjacent to their lease and a half mile from their crawfish ponds. Landlord sued for lost lease payments and remediation damages allegedly caused when the Tenant negligently spilled fuel and oil on the property and asking that Tenant restore the property to its original condition. The trial court granted summary judgment in favor of Landlord on the Tenants’ suit because the Tenants had not shown that Landlord was responsible for the contamination. Tenants appealed, asserting that Louisiana’s implied landlord warranties and strict landlord liability did not require any showing that the Landlord was at fault in the contamination of the crawfish ponds. The appellate court did not reach this question but it reversed the trial court because there was conflicting expert testimony on the cause of the condition that contaminated the crawfish, creating a genuine issue of material fact.

H. Detrimental Reliance

Delta Staff Leasing v. South Coast Solar, LLC, 2015-1273 (La. App. 4 Cir. 5/11/16). In August 2009, the City of New Orleans advised CMD by letter that it was preliminarily approved for a UDAG loan, then the City passed an ordinance authorized the Mayor to execute a Cooperative Endeavor Agreement (a CEA) with CMD. The CEA was signed by CMD, but not by the Mayor. In February 2010, CMD executed a sublease with South Coast Solar (SCS). Mayor Landrieu was sworn in in May 2010, and his administration determined that the CEA would not be executed. CMD then defaulted on its rent to SCS. SCS sued CMD, and CMD sued the City claiming detrimental reliance. The trial court dismissed the detrimental reliance claim, and the appellate court agreed. The City’s pre-approval letter stated that the approval was subject to the satisfaction of the terms and conditions in the letter, but CMD did not satisfy the

9 financial requirements. CMD knew that the Mayor had not signed the CEA and it knew that its loan had been approved only conditionally when it signed the sublease. Because a written CEA was contemplated but never fully executed, it was unreasonable for CMD to rely on it or any assurances allegedly given by the City.

I. Who Owns the Improvements Made on Land Leased from the Government?

Crowne Air, Inc. v. St. Tammany Parish, 2015-0741 (La. App. 1 Cir. 2/29/16), 192 So. 3d 114. Leasehold improvements (hangars) made by a sublessee under a long-term sublease of an airport from the City (the property was owned by the Parish) were owned by the sublessee, and were not exempt from ad valorem taxes. Although the City had subleased the property to the sublessee for the construction of the improvements and resulting benefit to the City, the sublease said that they remained the property of the sublessee until sublease termination.

J. Tenant’s Obligation to Make Repairs

KP Auto Sales, Inc. v. ADG, LLC, 2015-795 (La. App. 3 Cir. 2/10/16), 185 So.3d 308. TRP leased the location of car dealerships to ADG, and ADG assigned the lease to KP Auto Sales. In September 2005, the leased premises were damaged by Hurricane Rita. TRP and ADG sued KP to repair hurricane damage. KP responded that TRP and ADG were required to show the condition of the premises at the time KP took possession since KP was only obligated to maintain the premises to TRP in as good condition as on the date of possession. TRP asserted that the lease’s fire and other casualty provision required that upon casualty damage, Tenant repair and restore to substantially the condition at the time of the damage. The appellate court held that the casualty provision controlled over the maintenance provision and obligated KP to repair the building as it existed when the hurricane hit. The fact that KP was required to maintain property insurance on the building showed that KP was obligated to restore using he proceeds – and statements in KP’s suit against its insurer were admissible in the TRP’s action since they were relevant to TRP’s suit against KP for restoration (though the settlement agreement was not). These statements in KP’s suit against its insurers created a genuine issue of fact as to the condition of the property before the hurricane, and precluded summary judgment in favor of KP.

K. Security Deposit

Webapps, L.L.C. v. Murdock, 2016-0092 (La. App. 4 Cir. 6/29/16), 196 So.3d 765. On July 15, 2010, Landlord and Tenant entered into a 3-year lease for commercial property at 1582- 84 Magazine Street, and Tenant paid a $13,704 deposit to Landlord. The lease provided that Tenant had the right to terminate the Lease early by giving Landlord 90 days prior notice. Tenant gave the Landlord this notice on December 6, 2012, and vacated the property on March 3, 2013. In its termination letter, Tenant asked for return of its deposit in 30 days; however, on April 6, 2013, 30 days after the termination became effective, Landlord had not returned the deposit. On April 24, 2013, Tenant sent Landlord another letter demanding return of the deposit and reimbursement for the cost of $14,313.86 in improvements. By letter dated April 25, 2013, Landlord refused to return the deposit, stating generally that Tenant had damaged the property, then refused to provide an itemization or to provide Tenant with access to the property to

10 estimate the cost of repairs. The trial court ruled that Tenant was entitled to the return of its deposit because Landlord produced no evidence of damage to the property – it also awarded $200 in damages under La. R.S. 9:5252 as well as costs and attorneys’ fees. The appellate court agreed that La. R.S. 9:3251 et seq. applied to this matter, even though the lease was a commercial lease. Landlord did not comply with La. R.S. 9:3251 et seq. because she did not return the deposit or provide an itemized statement within 30 days after the lease was terminated. Landlord’s failure was willful under La. R.S. 9:3251 because she did not return the deposit or provide an itemization within 30 days after Tenant’s written demand on April 24, 2013 – Landlord’s letter on April 25, 2012, was not an accounting for proceeds she was retaining. For this reason, the trial court had the right to award attorneys’ fees under La. R.S. 9:3253 – and the appellate court upheld the trial court’s award of $27,868.75 in attorneys’ fees and $5,490.15 in costs and awarded Tenant an additional $3,000 in attorneys’ fees incurred in connection with the Landlord’s appeal.

L. Option to Purchase in Lease

Federal Work Ready, Inc. v. Wright, 2015-1301 (La. App. 4 Cir. 5/18/16), 193 So.3d 1217. FWC leased commercial property pursuant to a lease that gave FWR the option to purchase the property for $320,000. The Lease required FWR to make a $100,000 payment to the Landlord (the Wrights) in consideration for the purchase option, but provided that this option payment would count as pre-paid rent for the next 24 months – until December 31, 2014, when the option to purchase would expire. On November 14, 2014, FWR gave Landlord written notice of its intent to exercise its option to purchase, but after this letter was returned unclaimed, FWR had a private process server deliver the letter to Landlord. When Landlord did not respond, FWR followed up with a certified letter on December 18, 2014, but this letter too was returned unclaimed. The court held that FWR properly exercised its purchase option, and affirmed the trial court’s grant of summary judgment in favor of FWR - Landlord was obligated to go through with the sale.

M. Is it Rental Income?

Topshelf Sports, Inc. v. Simpson, 15-1111 (La. App. 3 Cir. 3/23/16), 186 So.3d 1288. Topshelf owned a 32,000 square foot metal building used by individuals and groups for athletic events, exhibitions, conventions, parties, trade events, and similar activities. These users paid Topshelf money to use the facilities for their activities. Topshelf took the position that these were leases and no sales taxes were due under La. R.S. 47:301(14)(b)(i) because the agreements with the users were leases. The appellate court observed that Topshelf maintained ultimate control over the facility, and that this type of arrangement was not the kind of lease that the legislature intended to be tax free. Topshelf was obligated to pay sales taxes on the amounts paid by its patrons.

II. SALE

A. Option or Obligation to Buy?

11 Nabours v. Christus Health Southwestern Louisiana, 2015-1061 (La. App. 3 Cir. 5/18/16). Doctor leased land from the nearby hospital in September 1988 for a 30 year term, then built an office building on it. More than 20 years later, the Doctor wanted to move to another hospital and tried to get the hospital to purchase the improvements from him. The hospital declined, so the Doctor found a purchaser; however, the hospital would not cooperate with the sale (an extension of the lease was apparently needed). The Doctor sued the hospital, claiming that the hospital was contractually obligated to buy the improvements for an appraised value of $371,000 under a section entitled “Right of First Refusal.” The trial and appellate court held that although the of this section was not determinative and its first sentence stated “Lessor shall purchase the same from Lessee” for the lower of the appraised value or the third- party price, it ended by saying that if Landlord did not go through with this purchase, Tenant’s remedy was to sell the property to the third person and assign the lease. 192 So.3d at 879. The court held that the Doctor’s only remedy was to sell the property to the third person – the hospital’s consent was given by its failure to buy. The court was also influenced by another provision that obligated the hospital to buy the improvements at a value that assumed that the lease had a remaining term of 15 years if the Doctor died, became disabled, or retired – indicating that the hospital was not obligated to buy under other circumstances.

B. Redhibitory Defects

Louapre v. Booher, 2016-0236 (La. App. 4 Cir. 8/31/16), 2016 WL 455516. The Louapres purchased a house on South Johnson St. in New Orleans from the Boohers for $490,000 on October 2, 2014. The Boohers had executed a property disclosure statement that indicated defects in the walls and windows, but no other defects. On August 20, 2014, the Louapres had obtained an inspection report by a licensed Louisiana home inspector that identified major deficiencies and other safety concerns. The Louapres then asked for a $7,500 reduction to remedy all of the listed deficiencies and accepted the Boohers’ $5,000 counter offer. They then received another $1,500 credit for other leak issues. At closing, they executed a cash sale that included a waiver of warranties and redhibition, generally in the Louisiana Commission form. After the Louapres moved in, they allegedly discovered even more defects of which they had no prior knowledge, and they filed suit against the Boohers based on redhibition and the Boohers’ property disclosure statement. The trial court granted summary judgment in favor of the Boohers because the Boohers had knowledge of the defects outlined in the home inspection report before the sale and despite this actual knowledge, they signed the waiver of warranties and redhibition. The appellate court affirmed. The court distinguished Valobra v. Nelson, 14-0164 (La. 4/11/14), 136 So.3d 793, because in that case the ruling was on no cause of action and the court held that the allegation of knowledge was sufficient. The Boohers’ motion was for summary judgment, so the court could consider evidence outside of the four corners of the petition. That evidence showed that the Louapres had received an inspection report that put them on notice of a great many defects not set out in the Boohers disclosure statement, that they negotiated and received a price reduction, and that they signed the waiver of redhibition. It was not reasonable for the Louapres to rely on disclosure statement – they knew better.

Duplechien v. Ackal, 2015-825 (La. App. 3Cir. 2/3/16), 185 So.3d 282. Purchaser sued in redhibition based on foundation defects in her home. The trial court granted summary judgment for Sellers because it found that the matter was prescribed for purposes of redhibition

12 since the sale had occurred in 2005, and suit was filed in 2013. The Purchaser claimed that the New Home Warranty Act did not apply because Sellers were not the builders of the home. Instead, the Purchaser claimed that the Sellers were manufacturers of the home under La. Civ. Code art. 2545 and must be viewed as having presumptive knowledge of the defects in the home – consequently, the redhibition claim would not prescribe until a year after the Purchaser gained knowledge of the defect. As manufacturers, Sellers also would not receive the benefit of the construction preemption period of 5 years. The appellate court observed that Purchaser did not show that the Sellers were in fact “manufacturers” – at most, they were sellers of property that was constructed by a contractor engaged by them. For these reasons, the appellate court upheld summary judgment in favor of Sellers.

C. Lesion Beyond a Moiety

Harruff v. King, 15-840 (La. App. 3d Cir. 3/9/16), 185 So.3d 289. Sellers sought to rescind a sale of property near the Hayneville Shale for lesion beyond a moiety. The trial court had rescinded the sale, but the appellate court had reinstated it as executed. While the appeal was pending, the Buyers took money from the registry of the court and transferring title to the disputed land to third parties - the Sellers had not taken a suspensive appeal. After the appellate court reinstated the sale, the property was restored to the Buyers. The Buyers moved for sanctions, but the trial court refused to award sanctions since it found that the Sellers had acted in good faith.

D. Public Records

In Re D’Anna, 548 B.R. 155 (E.D. La. 2016). Debtor purchased a residence on Bellaire Dr., New Orleans, from Mrs. Feingerts and the Maurice P. Feingerts Testamentary Trusts (the Trusts) on July 30, 2009. However, the property was part of Mr. and Mrs. Feingerts’ community assets, and when Mr. Feingerts died, he had bequeathed his one-half interest in the property to his 3 children, in trust. Mr. Feingerts’ will stated that when each child turned 31, he or she was to inherit his or her one-sixth interest in the property subject to a in favor of Mrs. Feingerts. Mrs. Feingerts was trustee of this trust. Consequently, the property was owned one- half by Mrs. Feingerts, and one half by the Trust, with Mrs. Feingerts as trustee and usufructuary. Mrs. Feingerts listed the property for sale, and signed an agreement to sell it to Debtor. By the time the agreement to sell and sale occurred, all three children had reached the age of 31, but at sale, Mrs. Feingerts transferred the property to Debtor individually and as trustee of the trusts – none of the children appeared. The sale was closed by Crescent Title, and Fidelity issued a homeowners’ title policy to Debtor. Debtor financed her purchase through a loan from Gulf Coast Bank, which then transferred to Bank of America. Mrs. Feingerts died in December 2011. In July 2012, Bruce Feingerts, one of the children, filed a petition for recognition of his one-sixth ownership interest in the property – neither of the other siblings claimed their interests. Debtor filed demands against the Trust and Mrs. Feingerts’ succession. The Bankruptcy Court asserted jurisdiction over all of the claims against the Debtor, including the claim challenging her ownership of the Bellaire property and the claim by Debtor against Fidelity and Crescent Title, which had closed the transaction. Fidelity and Crescent Title asserted that there was no notice of termination of the trust in the public records and that they were entitled to rely on the Judgment of Possession in the public records and Mrs. Feingerts’

13 authority as trustee of the trust that had been put in possession, but Feingerts pointed out that under Louisiana law, no recorded notice of termination was required – the trust terminated automatically when each child turned 31 (La. R.S. 9:2029.1, which requires that a notice of termination be filed to affect third parties, did not become effective until August 1, 2015 – 6 years after the sale – and the court refused to apply it retroactively). The Court agreed with Feingerts and held that he owned a one-sixth interest in the property – the public records doctrine does not permit third parties to rely on incorrect statements, including those of capacity and authority, in recorded documents and when the recordation of an act is not required, the public records do not protect the third party from the absence of that act. Also, the Maurice Feingerts’ probated will was of public record and stated that the trust would terminate when each child reached 31. However, Debtor had a good claim against Mrs. Feingerts’ succession because she breached her warranty against eviction and there was a failure of cause entitling the Debtor to rescission, consequently, her succession was obligated to reimburse Debtor for the purchase price, the cost of all improvements to the property, and other damages including interest associated with a purchase money loan, insurance, finance charges, property taxes, and court costs (not attorneys’ fees). Fidelity was liable to Debtor for the fair market value of the property when suit was instituted, capped at the policy limit, but not for Debtor’s attorneys’ fees since Fidelity did not approve them in advance. Fidelity had to bear the costs of its own attorney.

E. What are an Appraiser’s Duties?

Dufrene v. Murphy Appraisal Services, LLC, 2015-1351 (La. App. 1 Cir. 8/5/16), 199 So.3d 645. The members of Bayou Concrete Pumping, LLC (“Bayou”) signed a purchase agreement to buy property from the Blossmans for $87,500. Bayou planned to use the property for storage, maintenance, fueling, and servicing of its fleet of trucks. The broker listing this property advertised that it was zoned “HC-2 – highway commercial.” Gulf Coast Bank financed part of the purchase price, and as part of its loan diligence, it hired Murphy Appraisal Services to appraise the property. Murphy Appraisal issued a report saying that the value of the property was $125,000. The sale closed. A few months later, Bayou’s work on the property was stopped by a stop work order because the property was actually zoned A2-suburban residential.” Bayou sued Murphy Appraisal, the brokers, and the Blossmans, alleging that the property could not be used for their purposes and seeking recovery of the purchase price and all of the closing and construction costs that they had incurred. Morris Appraisal filed a motion for summary judgment, asserting that Bayou was not a party to or a third party beneficiary of their contract to Gulf Coast, that Bayou had not received the report until after the sale closed, and that the erroneous zoning designation given in the report, HC-2, would not have permitted Bayou’s use either. The trial court granted the motion because Bayou did not have knowledge of the appraisal at the time it bought the property. The appellate court upheld the dismissal of Morris Appraisal because it held that the appraiser owed no duty to Bayou – its client was Gulf Coast – and because Bayou’s members testified that they did not rely on the appraisal to select or decide to purchase the property.

F. What are the Home Inspector’s Duties?

Saba v. Emerson, 2016-0317 (La. App. 1 Cir. 10/31/16), 2016 WL 6427697. The Sabas bought the Emersons’ house, then found defects and sued for redhibition and fraud. The

14 Emersons filed a third party demand against the home inspector that had inspected the home for the Sabas – the Emersons claimed that they had relied on this inspection report. The appellate court affirmed the trial court’s dismissal of the suit against the home inspector because the buyers were the only intended users of the inspection report, there was no promise to the sellers by the home inspector, therefore no detrimental reliance, and the sellers were not a third party beneficiary of the home inspection report.

G. Can an Eviction Action Determine the Property’s Owner?

Bon Amis Investments, LLC v. Lapeyrouse, 2015-1459 (La. App. 1 Cir. 5/5/16), 195 So.3d 514. Bon Amis Investments, LLC, filed this action to evict Lapeyrouse from property. In defense, Lapayrouse asserted that he was actually the owner. Prior to September 3, 2013, Lapeyrouse did hold title, but on that date, an act of sale was recorded in which he transferred title to Bon Amis for $13,000. Bon Amis also produced an October 15, 2014 recorded lease/purchase agreement bearing Lapeyrouse’s signature, although Lapeyrouse denied its authenticity. He also claimed that the September 3, 2013 sale was for the purpose of obtaining a loan and he produced an unrecorded written act of sale purporting to transfer title from Bon Amis to the Lapeyrouse for $13,000. The city court signed a judgment of eviction in favor of Bon Amis, explaining that technically Bon Amis had proved that it owned the property, that it had a lease, and that Lapeyrouse had violated the lease. Lapeyrouse appealed, and the appellate court overturned the trial court, finding that a parish or city court has no jurisdiction over a case involving title to immovable property and that an eviction is not place to determine title where the defendant has a semblance of title.

H. Does It Have to Be in Writing?

Sunset Realty, Inc. v. Culp, 50,363 (La. App. 2 Cir. 1/13/16), 184 So.3d 256. Sunset Realty, Inc., entered into an oral contract with home builder Larry Culp to build residences on lots owned by Sunset Realty at Sunset’s cost, then purchase the lots and immediately find a buyer for the lots. The trial court dismissed Sunset’s suit against Culp under this alleged contract because it was not in writing, and a contract for the sale of immovable property must be in writing (La. Civ. Code art. 2440). The appellate court agreed.

Wesley v. Our Lady of the Lake Hospital, 2015-1649 (La. App. 1 Cir. 6/3/16). Our Lady of the Lake (OLOL) signed a contract to purchase property from the Wesleys conditioned on the Wesleys obtaining from the City of Baton Rouge the revocation of the dedication of Edelweiss Drive within 90 days. It took more than 90 days to have the dedication revoked. After they had the dedication revoked and cured all other title defects, the Wesleys demanded that OLOL close. OLOL responded that they no longer wanted the property. The Wesleys sued for specific performance, alleging that OLOL was involved in the revocation process and in constant contact and communication with the Wesleys throughout. The trial court granted, and the appellate court affirmed, OLOL’s motion of no cause of action and dismissed the action because the written purchase agreement stated that OLOL was not required to purchase if the dedication was not revoked in 90 days. The discussions after that 90 day period had passed were not binding because they were not in writing, and a contract to sell immovable property must be in writing. La. Civil. Code art. 1839.

15

I. Who Gets the Insurance Proceeds?

Woodlands Development, L.L.C. v. Regions Bank, 150359 (La. App. 5th Cir. 12/30/15), 183 So.3d 816. Woodlands sold property to JPG and Mrs. Temple pursuant to a sale with assumption of mortgage. The court held that the parties’ agreements in the Purchase Agreement survived the Act of Sale, was not parol evidence, and was to be interpreted with the Act of Sale to determine the parties’ rights and obligations. Under the terms of the Purchase Agreement, insurance proceeds received for damage to the property that occurred before closing was for the sole benefit of Woodlands, these proceeds were to be paid to the mortgagee to be held in escrow for the sole benefit of the Woodlands, JPG was to have no interest in the funds in this escrow account, and if Regions applied the funds to the loan, JPG was to pay Woodlands that amount. The Purchase Agreement governed, and JPG was liable to Woodlands for the insurance proceeds applied to the loan.

J. Dissolution of Sale

New Orleans Redevelopment Authority v. Irving, 2015-1366 (La. App. 4 Cir. 8/10/16), 198 So.3d 1193. The Derbignys bought 1617 Mirabeau Avenue, New Orleans, from the Road Home Program on August 26, 2011 for $65,000. NORA intervened as a third party beneficiary. The Act of Sale stated that NORA would enforce the Derbignys’ post-closing compliance requirements, including the obligation to maintain the property free of blight and in compliance with codes and to achieve substantial progress toward constructing improvements or rehabilitation of the property within 365 days of the closing. On November 14, 2013, and April 6, 2015, NORA determined that the property was not being improved or maintained as agreed, and on April 14, 2015, NORA filed suit seeking to rescind and dissolve the sale. The Sheriff was unable to serve the Derbignys, and the trial court appointed a curator for them. The curator was also unable to locate them. On September 15, 2015, the trial court rescinded and dissolved the sale and transferred title to NORA. The Derbignys learned of this judgment and filed this appeal. They alleged that the trial court erred in appointing a curator, asserting that they were not absentees, but the appellate court disagreed. The Derbignys also claimed that the trial court erred by using summary proceedings in a breach of contract case; however, the appeallate court held that the Derbignys were required to object to the use of summary proceedings before the trial court and that summary proceedings were agreed to in the Act of Sale; therefore, summary proceedings were proper. Finally, the Derbignys alleged that the Act of Sale permitted reversion of title to NORA only upon a failure to maintain, not upon a failure to rehabilitate, but the appeallate court found that the evidence was sufficient for the court to determine that the property had not been maintained, so the rescission of the sale was upheld.

K. Consideration

Ascani v. Ascani, 2016-0067 (La. App. 4 Cir. 6/29/16), 197 So.3d 308. Husband and Wife were married from November 22, 1966, to April 20, 2011, and during the marriage, community proceeds of $4,000 were used to purchase property in Nevada from husband’s grandmother. Years later, Husband received an offer to purchase that property for $605,000. Before the sale, in 2004, at Husband’s request, Wife transferred her interest in the property to

16 Husband by grant, bargain, and sale . Husband then, again in 2004, purchased another Nevada property and had Wife transfer her interest in it to him. On June 28, 2011, Wife filed a petition to rescind the , claiming fraud and no consideration. The trial court rendered judgment in favor of Husband, and Wife appealed, claiming that the deed was actually a sale without consideration. Husband claimed and the trial court found that the cause for Wife’s transferring her interest in the Nevada property was the purchase of a home on Emerald Street in New Orleans being sold by her brother, and the appellate court affirmed. As to Wife’s claim of fraud, Wife testified that Husband told her that the deeds were powers of attorney and kept her from reading the documents, but the trial and appellate courts recognized that the spouses had discussed the relinquishment of Wife’s interest in the Nevada property and that it was customary for her not to read the documents she signed in real estate transactions.

L. Possessary Action

Kilpatrick v. Saline Lakeshore, LLC, 2015-917 (La. App. 3 Cir. 2/24/16), 185 So.3d 350. The Kilpatricks had possessed 2 tracts of land on Horse Island in Avoyelles Parish for nearly 20 years, with movable camps (houseboats) sitting on the tracts. Saline Lakeshore sent the Kilpatricks a letter on March 4 and April 18, 2013, notifying them that Saline owned the land and that if the Kilpatricks did not execute a lease, Saline would evict them, and threatening action by May 15, 2013. The Kilpatricks filed a possessory action on April 24, 2014, and Saline filed an exception of prescription, claiming that the letters were a disturbance in fact, leaving the Kilpatricks with a year to file their possessory action. However, the court denied the exception – the letters were only a disturbance in law, not a physical disturbance of the Kilpatrick’s possession.

17