Poydras Square Associates v. Suzette's Artique, Inc.

• Decision Date: 29 January 1993
• Docket Number: No. 92-CA-0572,92-CA-0572
• Citation: 614 So.2d 131
• Parties: POYDRAS SQUARE ASSOCIATES v. SUZETTE'S ARTIQUE, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 131

614 So.2d 131

POYDRAS SQUARE ASSOCIATES v. SUZETTE'S ARTIQUE, INC.

No. 92-CA-0572.

Court of Appeal of Louisiana Fourth Circuit.

Jan. 29, 1993.

Turner, Young, Hebbler & Babin, Wilbur J. "Bill" Babin, Jr., Greg C. Fuxan, New Orleans, for appellee.

Thomas J. Smith, Leah C. Russell, Galloway, Johnson, Tompkins & Burr, New Orleans, for appellant.

Before BYRNES, LOBRANO and ARMSTRONG, JJ.

BYRNES, Judge.

On October 5, 1988 defendant Suzette's Artique, Inc. entered into a written lease with the plaintiff, Poydras Square Associates, for the commercial property located at Room # 412, New Orleans Centre, 1400 Poydras Street, New Orleans, Louisiana, 70112. On October 26, 1990 Poydras Square filed a petition for past due rent and rule for eviction against Suzette's.

On October 25, 1991 summary judgment was rendered in favor of Poydras Square, without opposition from Suzette's, condemning Suzette's to pay $19,363.33 for rent owed, $1,909.27 for attorney's fees, and all costs. Suzette's has brought this appeal from that judgment. We affirm.

Suzette's makes reference in its brief to an amended petition filed by Poydras Square on November 11, 1991 naming as additional defendants Robert and Suzette Ruegger as sureties for the lease; and a counter-claim filed by Suzette's on March 4, 1992 seeking damages on the basis that Poydras Square fraudulently induced it to enter into the lease in question. These pleadings were filed subsequent to the rendering of the judgment that is the object of this appeal. We will not consider them nor any issues which they raise.

Standard of Review When The Trial Court Grants a Motion For

Summary Judgment

No oral or depositional testimony was introduced at the hearing on Poydras Square's motion for summary judgment.

Even in the absence of a formal opposition, the moving party must show that it is entitled to summary judgment. If a plaintiff whose opponent fails to file an answer must prove the basic elements of his case before he can be awarded a judgment by default, then it is reasonable to require that an unopposed motion for summary judgment must be at least adequate and correct on its face. The documents and affidavits in support of the motion must substantiate the essential elements of mover's claim. We adopt the standard used in White v. Mossy Oldsmobile, Inc., 606 So.2d 33 (La.App. 4 Cir.1992):

"In reviewing a district court's decision on a motion for summary judgment, an appellate court must review the entirety of the case, and is "permitted to pierce the mere allegations in the pleadings and consider the depositions, affidavits, and admissions on file in order to determine if summary judgment is appropriate." Williams v. Ingredient Technology Corp., 470 So.2d 283, 285 (La.App. 5 Cir.1985).

The review of a motion for summary judgment entails a two step analysis. First, the moving party has the initial burden to affirmatively prove the absence of a genuine issue of material fact and that he is entitled to judgment as a matter of law. Any doubt must be resolved against summary judgment and in favor of a trial on the merits. Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Company, 427 So.2d 1152 (L.1983); Morcos v. EMS, Inc., 570 So.2d 69 (La.App. 4 Cir.1990).

Secondly, if the moving party provides sufficient evidence to support the motion, the burden shifts to the opposing party to produce evidence proving that genuine issues of material fact are still present. Cooper v. Ceco, 558 So.2d 1355 (La.App. 4 Cir.1990)."

Suzette's introduced neither documents, affidavits, nor any other evidence in support of the allegation in its petition that there had been an amendment to the lease.

"When a motion for summary judgment is made and supported with affidavits, depositions, and/or answers to interrogatories the adverse party may not rest merely on the allegations or denials contained in his pleadings. He must provide opposing affidavits or other documentation which show that there are genuine issues of material fact. If he does not produce such documentation, the summary judgment, if appropriate, should be rendered against him. LSA-C.C.P. art. 967." Williams v. Markle Lumber Co., 566 So.2d 446, 450 (La.App. 4 Cir.1990). (Emphasis added).

Therefore, Suzette's mere allegation in its pleadings raises no genuine issue of material fact. The same can be said of Suzette's allegations contradicting Poydras Square's claim for rent due.

Timing and Sufficiency of Notice

Suzette's avers that Poydras Square's letter to Suzette's dated November 2, 1990 cannot support Poydras Square's allegation in its petition that it had already given notice "pursuant to the terms of the lease." It shows on the face of the record that Poydras Square's petition was filed on October 31, 1992, three days prior to the date of the notice which allegedly already had been sent by the time the petition was filed. The proper procedural vehicle for raising this issue would have been for Suzette's to file an exception of prematurity in the trial court. LSA-C.C.P. art. 926 and 927. It is too late to raise that issue for the first time in this court.

Suzette's also complains that the notice was not addressed to it at the leased premises as required by the terms of the lease and that it was not sent by certified or registered mail, return receipt requested.

Nothing on the face of the notice indicates that it was not sent by certified or registered mail, return receipt requested. It is supported by an affidavit filed by Poydras Square attesting to the fact that notice was given "pursuant to the terms of the lease" which language is broad enough to include all formalities of form, content, and manner of delivery as may have been required by the lease. To raise a proper objection, Suzette's should have filed the envelope that contained the notice, or a countervailing affidavit in opposition to the motion for summary...