Durrosseau v. Century 21 Flavin Realty, Inc.
| Decision Date | 12 February 1992 |
| Docket Number | No. 90-789,90-789 |
| Citation | 594 So.2d 1036 |
| Parties | Ray DURROSSEAU, Plaintiff-Appellant, v. CENTURY 21 FLAVIN REALTY, INC., Defendant-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Donald McKnight, Lake Charles, for plaintiff-appellant.
Tynes, Fraser, Roach & Morris, Randall E. Roach, Lake Charles, for defendant-appellee.
Before GUIDRY, FORET and LABORDE, JJ.
This is an appeal from a summary judgment in favor of defendant, Century 21 Flavin Realty, Inc. (Flavin).
Plaintiff, Ray Durrosseau, entered into a management agreement with defendant, Flavin, in which the latter agreed to manage a house owned by plaintiff, located at 1700 8th Avenue in Lake Charles, for the purpose of leasing it. Flavin acted as the leasing agent for the property. The agreement was entered into on March 2, 1982.
Pursuant to the aforementioned agreement, Flavin leased the property to John Cochran on April 1, 1987. Cochran moved into the house on April 7, 1987. He paid rent for the first two months but failed to do so for June. Flavin instituted eviction proceedings against Cochran on June 11, 1987. Soon thereafter, Durrosseau apparently discovered that Cochran had done a substantial amount of damage to his property. On June 29, 1987, Durrosseau terminated the management agreement and proceeded to evict Cochran.
On July 31, 1987, plaintiff instituted this suit against Flavin, alleging that defendant had "improperly and/or inadequately managed the property, rented the property to improper or unsuitable tenants, failed to properly inspect the property while rented, allowed third persons to remain in the house and on the property, and failed to notify the owner of the property of the damages occurring and the identities of the persons living on the property ...".
Defendant answered the petition by generally denying all allegations and filed a motion for summary judgment on January 29, 1988. In support of its motion, Flavin relied solely upon a provision of the contract which it apparently urged exonerated it from liability. The contractual provision relied upon by defendant provides as follows:
(Emphasis ours)
The motion for summary judgment was supported by an affidavit of Gary Flavin, the supervisor of all rental properties managed by Flavin, which simply recited the facts previously mentioned in this opinion and quotes the above recital from the agreement.
Plaintiff filed a counter affidavit which states that defendant "did not prudently manage the property and leased the said property to unsuitable tenants". Although the record does not reflect any disposition of this motion for summary judgment, the motion was apparently denied by the trial court since a second motion for summary judgment was filed by defendant on March 2, 1990. 1
In support of this second motion for summary judgment, defendant filed a second affidavit of Gary Flavin. The affidavit quotes the above contract provision and further states the following facts:
No other facts were sworn to by Flavin in the affidavit. Apparently, defendant relied upon the second sentence of the contract provision in asserting that there was no genuine issue of material fact as to whether it could be held liable for damages caused by the tenants.
Durrosseau filed no affidavit in response to Flavin's second motion for summary judgment. In his memorandum in opposition, plaintiff once again asserted that Flavin, as agent for Durrosseau, breached its duty under the agreement to give its best efforts to lease the property to suitable tenants and to prudently manage the property. The court granted the summary judgment and plaintiff appealed.
It is well settled that summary judgment is to be granted "if the...
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