Travelers Ins. Co. v. Liljeberg Enterprises, Inc.
| Decision Date | 26 November 1993 |
| Docket Number | No. 92-9581,92-9581 |
| Citation | 7 F.3d 1203 |
| Parties | The TRAVELERS INSURANCE COMPANY, Plaintiff-Appellee Cross-Appellant, v. LILJEBERG ENTERPRISES, INC., Defendant-Appellant Cross-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kenneth Charles Fonte, Golden & Fonte, Metairie, LA, William F. Wessel, Wessel, Bartels & Ciaccio, New Orleans, for defendant-appellant.
Brent Bennett Barriere, S. Ault Hootsell, III, New Orleans, for plaintiff-appellee.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before SNEED *, REYNALDO G. GARZA, and JOLLY, Circuit Judges.
This is a case involving a large landlord-lender and a major corporate tenant. Defendant Liljeberg Enterprises, Inc. (LEI), the tenant, appeals the district court order granting Plaintiff Travelers Insurance Company (Travelers), the landlord-lender, summary judgment in Travelers's action to enforce two leases, 799 F.Supp. 641 (E.D.La.1992).
Travelers cross appeals on the grounds that (1) the district court should have awarded accelerated rent with interest according to Louisiana law from the date of LEI's default rather than legal interest from the date of judgment and (2) the district court should have awarded attorney fees.
We affirm the district court's grant of summary judgment to Travelers but remand for entry of judgment to award Travelers prejudgment interest.
The facts pertinent to the leases at issue are not in dispute. LEI initially leased space in the St. Jude Medical Office Building (the building) on May 1, 1985, from the St. Jude Medical Office Building Limited Partnership (Partnership). Under this first lease, LEI rented 11,893 square feet of the building for a ten-year term from August 1, 1985, to July 31, 1995, at a monthly rate of $14,866.25. The Partnership was authorized to grant a mortgage on the building to an "Institutional Mortgagee," defined to include insurance companies like Travelers.
On October 10, 1985, Travelers loaned the Partnership $25 million, and the Partnership executed and delivered to Travelers an interest-bearing promissory note in that amount plus interest. The Partnership granted Travelers a mortgage on the building and assigned all rents to be paid on leased spaces in the building to Travelers.
On May 1, 1987, LEI entered into a second lease with the Partnership for an additional 1,800 square feet in the building. This lease was for a five-year term and had a monthly rental of $2,250; it also was subject to the lease assignment and was identical in form to the first lease.
In March 1990, the Partnership defaulted on its payments to Travelers. Travelers filed suit against the Partnership in June 1990. 1 At public auction on October 18, 1991, the building was sold to Travelers, the only bidder. Acting pursuant to section 20(g) 2 of the first and second leases, Travelers delivered to LEI two proposed leases on November 15, 1991. LEI refused to sign the leases or pay any monthly rentals.
On December 11, 1991, Travelers sent LEI a notice of default. LEI neither responded nor paid the outstanding rental. Travelers then elected to accelerate all rent payments pursuant to section 22 of the leases. On January 6, 1992, Travelers filed a complaint against LEI in district court seeking a declaratory judgment that the proposed leases were valid and enforceable and seeking damages in the amount of all accelerated rent due under the leases with contractual interest, costs, and attorney fees. LEI answered the complaint and denied liability.
Travelers moved for summary judgment on June 16, 1992. LEI submitted its opposition Deciding Travelers's motion on the briefs and exhibits, the district court granted Travelers summary judgment on August 13, 1992. On August 18, 1992, the court awarded Travelers damages of $746,086.95 with legal interest from the date of judgment and all costs. Both parties appeal, with LEI seeking to overturn the judgment and Travelers seeking to increase it.
response on July 7, 1992, with a supporting affidavit from its president, who claimed that Travelers failed to deliver possession of the premises. Travelers's motion was taken under consideration by the district court on July 15, 1992. On July 17, 1992, Travelers submitted its reply memorandum; 3 exhibits were attached, including an affidavit 4 of Yvette Maher, the building's property manager. Maher attested that LEI never had been denied access to its building space and that the space neither had been leased to nor otherwise used by anyone except LEI
The district court had diversity jurisdiction pursuant to 28 U.S.C. § 1332. This court has jurisdiction pursuant to 28 U.S.C. § 1291.
Our review of the district court's grant of summary judgment is de novo. Fireman's Fund Ins. Co. v. Murchison, 937 F.2d 204, 207 (5th Cir.1991). We must ask whether no questions of material fact exist that would bar the moving party from being entitled to judgment as a matter of law. Schuster v. Martin, 861 F.2d 1369, 1371 (5th Cir.1988). Our standard of review for contract interpretation is de novo. See Matador Drilling Co. v. Post, 662 F.2d 1190, 1197 (5th Cir.1981).
LEI raises three issues on appeal. First, LEI contends that summary judgment was improper because the pleadings and affidavits raised a genuine issue of material fact concerning whether Travelers had delivered possession of the leased premises. Second, LEI claims that the district court improperly considered an affidavit submitted by Travelers. Third, LEI argues that the district court erred in interpreting and applying various lease provisions. We discuss each in turn.
First, we consider LEI's contention that summary judgment was improper because there was a genuine issue of material fact concerning whether Travelers denied LEI access to the leased premises. In opposing Travelers's motion, LEI submitted president John A. Liljeberg, Jr.'s, affidavit, which included conclusory allegations that Travelers had not provided LEI with possession. 5 This affidavit did not indicate when or how LEI was denied possession of the premises. Responding to LEI's opposition, Travelers attached to its reply memorandum Maher's affidavit in which she attested that LEI never was denied access to its space in the building.
This exchange does not necessitate a trial on the issue of possession. When seeking summary judgment, the moving party bears the burden of showing there are no genuine factual issues such that the movant is entitled to judgment as a matter of law. The opponent must meet the movant's affidavits with opposing affidavits that set out specific facts showing an issue for trial. See Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir.1978) (citations omitted). Although the Fifth Circuit has not been liberal in affirming summary judgments, "conclusory allegations supported by a conclusory affidavit will not suffice to require a trial." Shaffer v. Williams, 794 F.2d 1030, 1033 (5th Cir.1986). This is true even if the movant cannot demonstrate contrary facts by specific affidavit recitation to rebut the conclusory affidavit. See id.; Fontenot v. Upjohn Co., 780 F.2d 1190, 1196 (5th Cir.1986); see also Broadway v. Montgomery, 530 F.2d 657, 660 (5th Cir.1976) (). Two opposing conclusory affidavits do not preclude summary judgment.
Under Louisiana law, "possession" is defined as the exercise of physical acts of use, detention, or enjoyment over a thing. La.Civ.Code Ann. art. 3425. Liljeberg's affidavit did not raise a genuine issue of possession. Having offered no evidence of specific acts taken by Travelers that resulted in LEI's loss of possession, Liljeberg's affidavit left open only the possibility that LEI had voluntarily surrendered possession to someone other than Travelers. This creates no genuine issue relevant to this case.
Second, we consider LEI's argument that the district court erred in allowing Travelers to submit a reply memorandum with exhibits after having submitted its summary judgment motion. Specifically, LEI maintains that the court erred in considering the Maher affidavit that was attached to the reply memorandum without affording LEI a hearing and an opportunity to object to or contradict the affidavit in a genuine issue-creating manner.
We find this procedural challenge unpersuasive. Rule 56(c) of the Federal Rules of Civil Procedure requires that the party opposing a summary judgment motion receive 10 days' notice that the matter will be taken under advisement on a certain day. See Fed.R.Civ.P. 56(c); Kibort v. Hampton, 538 F.2d 90, 91 (5th Cir.1976). It is undisputed that LEI received sufficient notice that the court would be considering Travelers's motion on a specific date and that LEI had the opportunity to respond with affidavits.
Nor was the Maher affidavit so untimely that the district court erred in considering it. Travelers's reply memorandum was submitted on July 17, 1992, with Maher's unexecuted affidavit, which it substituted with an executed affidavit five days later with the court's permission. LEI had notice of the contents of the Maher affidavit on July 17, 1992, the date Travelers moved to submit its reply memorandum. Three weeks elapsed between the submission of the executed affidavit on July 22, 1992, and the court's grant of summary judgment on August 13, 1992. LEI had ample time to object to the Maher affidavit but never did. LEI filed no motions to supplement its opposition to Travelers's summary judgment motion.
Third, we now consider LEI's argument that the court misinterpreted the lease terms. LEI argues that the district court should not have enforced the leases because, when Travelers delivered them to LEI, it already had foreclosed...
To continue reading
Request your trial
-
Ciccorp, Inc. v. Aimtech Corp.
...affidavits suffice to create or negate a genuine issue of fact. McCallum Highlands, Ltd., 66 F.3d at 92; Travelers Ins. Co. v. Liljeberg Enters., Inc., 7 F.3d 1203, 1207 (5th Cir.1993); Salas v. Carpenter, 980 F.2d 299, 305 (5th B. Service Mark and Trade Dress Infringement CIC alleges that ......
-
Lowrey v. Texas a & M University System
...affidavits suffice to create or negate a genuine issue of fact. McCallum Highlands, 66 F.3d at 92; Travelers Ins. Co. v. Liljeberg Enters., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993); Salas v. Carpenter, 980 F.2d 299, 305 (5th To analyze and evaluate the issues raised in the Amended Motion for......
-
Harris Cty. Wrecker Owners v. City of Houston
...create or negate a genuine issue of fact. McCallum Highlands v. Washington Capital Dus, 66 F.3d at 92; Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 7 F.3d 1203, 1207 (5th Cir.1993); Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. VI. Preemption Plaintiffs argue that 49 U.S.C. § 14501(......
-
In re Porter, 10–1130.
...on state law, such as the one before this Court, are controlled by state rights to judicial interest. Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 7 F.3d 1203 (5th Cir.1993). 395. Exh. 62 (Herlihy email to Eveline—“please find a summary of George Porter's account with Highsteppin Prod......