Lloyd v. Merit Loan Co. of Shreveport
Decision Date | 08 September 1971 |
Docket Number | No. 11673,11673 |
Citation | 253 So.2d 117 |
Parties | Mrs. Rose LLOYD, Plaintiff-Appellant, v. MERIT LOAN COMPANY OF SHREVEPORT, INC., Defendant-Appellee. |
Court | Court of Appeal of Louisiana — District of US |
Hargrove, Guyton, Van Hook & Ramey, by James A. Van Hook, Shreveport, for plaintiff-appellant.
Cook, Clark, Egan, Yancey & King, by Gordon E. Rountree, Shreveport, for defendant-appellee.
Before BOLIN, HEARD, and HALL, JJ.
This case is a sequel to case No. 11,578 carried on the February docket of this court. In that case we sustained the granting of a summary judgment for the payment of rent under a recorded lease, 245 So.2d 427. Mrs. Rose Lloyd instituted suit against Merit Loan Company for rent allegedly due under a written lease, for interest on the rent and for attorney's fees.
Mrs. Rose Lloyd and Merit Loan Company had entered into a written lease agreement for a term beginning December 1, 1966 and ending November 30, 1969 whereby defendant leased and rented from Mrs. Rose Lloyd certain commercial property in Shreveport, Louisiana for the monthly rental of $287.35 per month. The rent for the months of June, July, August, September, October and November 1969 was unpaid, and it was the contention of plaintiff that the rent for this six months period was due pursuant to the terms of the lease agreement as a result of cancellation of the lease by defendant. A motion for a partial summary judgment was filed by plaintiff seeking judgment for the rent and interest thereon omitting attorney's fees. This motion was opposed by defendant. The trial court sustained the motion, defendant appealed, the judgment of the trial court was affirmed and the judgment subsequently paid, leaving the only remaining issue the plaintiff's claim for attorney's fees. On this question defendant, Merit Loan Company filed a motion for summary judgment which was sustained by the trial court. From this judgment plaintiff has appealed.
It is the contention of plaintiff that LSA-C.C.P. Art. 966 provides that a motion for summary judgment shall be granted when the pleadings, depositions, admissions and affidavits, if any, show that there is no genuine issue as to a material fact; that plaintiff in this case has alleged in her petition that defendant was in legal bad faith in its violation of its contract with plaintiff and that this is a material fact to be passed upon in determining whether or not attorney's fees are allowable. The specification of errors are:
(1) in holding that attorney's fees are never recoverable unless provided for by contract between the parties or unless the statute specifically provides in so many words that attorney's fees are recoverable;
(2) in holding that Articles 1930 and 1934 of the Louisiana Civil Code do not and can never, regardless of circumstances, include attorney's fees in the measure of damages for breach of contract.
It is conceded that the lease agreement made no provision for attorney's fees for its violation. In order to uphold his convery lengthy and exhaustive brief in a tention, counsel for plaintiff has filed a thorough discussion of the law relative to attorney's fees. After a careful consideration of the authorities therein cited, as well as those cited by defendant's counsel, we find that the Supreme Court in the case of Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1959) discussed the general rule and its exceptions relative to the allowance of attorney's fees. The court stated:
'We do not feel that it would be appropriate in this case to decide which line of jurisprudence should be followed in such injunction proceedings because we do not have such issue before us and any comment that we might make would be merely obiter dictum.
In the case of Chauvin v. LaHitte, 229 La. 94, 85 So.2d 43, the Supreme Court said:
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