Tauzin v. Claitor

• Decision Date: 29 June 1982
• Docket Number: No. 14994,14994
• Parties: Henry TAUZIN, d/b/a Mo's Buster Brown Shoes, et al. v. R. G. CLAITOR, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1304

417 So.2d 1304

Henry TAUZIN, d/b/a Mo's Buster Brown Shoes, et al. v. R. G. CLAITOR, et al.

No. 14994.

Court of Appeal of Louisiana,

First Circuit.

June 29, 1982.

Rehearing Denied Aug. 24, 1982.

Lewis O. Unglesby and Keith D. Jones, Baton Rouge, for plaintiffs-appellees Henry Tauzin d/b/a Buster Brown Shoes, Fred H. Russ, Jr. and Lois K. Russ d/b/a Sew & Sew Fabrics, Anthony A. Bordelon d/b/a Bordelon Sewing Center and Tri-J Enterprises, Inc.

Cordell H. Haymon, Baton Rouge, and Mack E. Barham, New Orleans, for defendants-appellants Robert C. Claitor and R. G. Claitor Realty Co.

Joseph E. Juban, Baton Rouge, for third party defendants-appellees Juban Properties, Inc., and Ray A. Juban.

Before LEAR, CARTER and LANIER, JJ.

LANIER, Judge.

This is a suit for damages in contract and tort by the tenants of a small shopping center in Baton Rouge, Louisiana, Henry Tauzin d/b/a Mo's Buster Brown Shoes, Anthony A. Bordelon d/b/a Bordelon Sewing Center, and Tri-J Enterprises, Inc. (hereinafter referred to as Tri-J), against their lessors, R. G. Claitor and R. G. Claitor Realty Company, a partnership in commendam (hereinafter referred to as Claitor and Claitor Realty). Claitor and Claitor Realty filed a reconventional demand against their tenants for unpaid rents. After a trial by jury on June 8-12, 1981, there was judgment on the main demand in favor of Tauzin for $40,000.00, Bordelon for $20,000.00 and Tri-J for $55,000.00. There was judgment by the trial judge in favor of Claitor and Claitor Realty on the reconventional demand for unpaid rents against Tauzin for $27,432.00 (36 months at $762.00), against Bordelon for $4,752.00 (9 months at $528.00), and against Tri-J for $2,989.00 (6.7 months at $447.50). Claitor and Claitor Realty took this suspensive and devolutive appeal. ¹

I. FACTS

In 1970, Claitor, the Kroger Company (hereinafter referred to as Kroger), and Ray Juban ² (hereinafter referred to as Juban), owned three adjacent parcels of property denominated Parcels 1, 2 and 3, respectively, and executed a written Reciprocal Agreement for developing these properties jointly into a shopping center on Perkins Road in Baton Rouge, Louisiana. This Reciprocal Agreement provided in part that each owner granted to the other the right of access to and use of the common areas of the properties for use by pedestrians and vehicular traffic and for the parking of automobiles by the customers, employees and tenants in the shopping center. It also called for Juban to build a fifteen foot driveway along the eastern edge of Parcel 3.

By two separate acts of sale in 1971 and 1974, Claitor acquired Lot 8 which is adjacent to and east of Parcel 3. Claitor constructed two buildings on Lot 8 and the building closest to Perkins Road contained several stores which faced the parking lot on Parcel 3. Claitor furnished his proposed plans for the development of this property to Juban Properties, Inc. and its tenant on Parcel 3, T G & Y Stores Company. At that time counsel for Juban, apparently on behalf of Juban Properties, Inc., indicated in writing that he did "not object to such use of the fifteen (15) foot driveway by Mr. Claitor provided such use is acceptable..." to the T G & Y Company. T G & Y replied that it did not consider construction of the building and parking facilities by Claitor on Lot 8 as a violation of their lease agreement for the store.

Effective August 1, 1974, Tri-J Enterprises, Inc. leased 1504 square feet of building space from Claitor on the Lot 8 premises for $447.50 per month, Robert C. Rogers d/b/a The Hobby Hut leased 1786 square feet at a rental of $528.00 per month, and Jasmin, Inc., a corporation owned by Mohammed Jasmin and Henry Tauzin which did business under the trade name of Mo's Buster Brown Shoes, leased 3001 square feet for a monthly rental of $762.00. Each of these leases was for five years with an option to renew for an additional five years.

Apparently at the end of 1974 or the beginning of 1975, a dispute commenced between Claitor and Juban over the use of the driveway on the eastern edge of Parcel 3 and the use of the Parcel 3 parking lot by tenants and customers from Lot 8. Juban, through his attorney, offered to allow use of the driveway and parking lot to Claitor, his tenants, and their customers, for $250.00 per month. Claitor made a counteroffer for the use of and access to Parcel 3 by paying a pro rata share of the maintenance costs of the premises. Apparently, negotiations broke down, and in 1975 Juban Properties, Inc., as owner of Parcel 3, filed a suit for declaratory judgment against Claitor, ³ as owner of Lot 8, seeking to establish its right to construct a fence along the property line separating Parcel 3 and Lot 8. Claitor defended this suit on the grounds that rights of use and access were created by the Reciprocal Agreement and by verbal agreements between he and Juban. Claitor did not advise his tenants of the dispute with Juban over the access to or use of Parcel 3, nor did he advise them of the pending litigation for authority to construct the fence at this time.

In 1976 Claitor filed suit against Juban, individually, alleging that Juban Properties, Inc. was seeking court authority to erect the fence in question in violation of the Reciprocal Agreement between Claitor, Juban and Kroger and in violation of verbal agreements between Juban and Claitor. Claitor sought damages in the form of attorney fees for defending the declaratory judgment suit and for injuries to his business interests in the form of loss of profits and rents.

On May 9, 1977, and effective January 1, 1977, Henry Tauzin, individually, bought the business known as Mo's Buster Brown Shoes from Jasmin, Inc. and Jasmin, Inc. assigned the lease of the premises to him with the written consent of Claitor. Effective February 1, 1977, Robert C. Rogers subleased the premises occupied by The Hobby Hut to Anthony Bordelon d/b/a Bordelon Sewing Center with the verbal consent of Claitor. Claitor did not advise either Tauzin or Bordelon of the dispute over the use of Parcel 3 or the pending suit for declaratory judgment at this time.

On March 3, 1977, the declaratory judgment suit went to trial and resulted in a decision in favor of Claitor and denying the right of Juban Properties, Inc. to construct the fence. Juban Properties, Inc. appealed to this court and on December 28, 1977, we reversed the trial court and rendered judgment in favor of Juban Properties, Inc. authorizing the construction of the fence. Juban Properties, Inc. v. Claitor, 354 So.2d 672 (La.App. 1st Cir. 1977). We ruled that the terms of the written Reciprocal Agreement were not applicable to Lot 8 and by implication ruled that there was no binding verbal agreement between Claitor and Juban. Claitor sought supervisory writs from the Louisiana Supreme Court which were denied on March 27, 1978. Juban Properties, Ltd. v. Claitor, 356 So.2d 440 (La.1978).

On June 9, 1978, Juban Properties, Inc. erected a chain link fence between Parcel 3 and Lot 8. This construction prompted immediate complaints from the tenants on Lot 8. Several days later, Claitor Realty and Mr. and Mrs. Claitor, individually, filed suit against Juban, Juban Properties, Inc. and the lessee of Parcel 3 seeking a judgment recognizing their right to use of and access to Parcel 3 and seeking an injunction to require removal of the fence. The lessee filed an exception of no cause of action which was sustained. Juban and Juban Properties, Inc. filed motions for summary judgment which were granted by the trial court on the grounds that the fence was constructed pursuant to a final judgment and did not create a cause of action in favor of the plaintiffs. This court affirmed in an unpublished opinion which adopted the trial court's reasoning. On September 28, 1979, the Louisiana Supreme Court granted the writs sought by the plaintiffs. R. G. Claitor's Realty v. Juban, 375 So.2d 947 (La.1979). On January 28, 1980, the Louisiana Supreme Court affirmed the rulings of the trial court and this court. R. G. Claitor's Realty v. Juban, 391 So.2d 394 (La.1980). A rehearing was granted and the original decree was reinstated on October 20, 1980, on the grounds that the suit was properly the subject of a plea of res judicata.

Because of the presence of the chain link fence between Lot 8 and Parcel 3, Tauzin and Tri-J stopped paying their monthly rent in June of 1978, and Bordelon stopped paying his rent in July of 1978. On December 4, 1978, Claitor and Claitor Realty served notices of eviction on the tenants of Lot 8 who were not paying their rent. This suit was filed on December 6, 1978, and the rents which were due under the leases were deposited into the registry of the court by court order. Bordelon left the leased premises in March of 1979, four months prior to the end of the primary term of the lease. Tri-J left the leased premises on or about February 19, 1979, five and one-half months prior to the end of the primary term of the lease. Tauzin did not leave the leased premises and was still there at the time of the trial.

In 1979 while the suit by the Claitor group against the Juban group to remove the fence was pending in the Louisiana Supreme Court, an amended petition was filed in the 1976 suit by Claitor against Juban, individually, adding R. G. Claitor Realty as a party plaintiff and Juban Properties, Inc. as a party defendant. This amended petition further alleged a reciprocal oral agreement between the parties for the use of Parcel 3 and Lot 8 by their owners, occupants and customers; that Claitor developed Lot 8 in reliance upon this oral agreement; and that the erection of the fence was a breach of this oral agreement by Juban and Juban Properties, Inc. This amended petition sought damages for negligence, intentional wrongdoing and in contract. At the same time in the instant case, Claitor and Claitor Realty filed a third party demand against Juban and Juban...