Yokum v. 615 Bourbon Street, L.L.C.
| Decision Date | 26 February 2008 |
| Docket Number | No. 2007-C-1785.,2007-C-1785. |
| Citation | 977 So.2d 859 |
| Parties | Peterson M. YOKUM and Polly Elizabeth Anderson v. 615 BOURBON STREET, L.L.C. d/b/a The Rock, Old Opera House, Inc. d/b/a Old Opera House and Willie Mintz. |
| Court | Louisiana Supreme Court |
Smith Stag, Stuart Housel Smith, Kimberly Wooten Rosenberg, New Orleans, Catherine Berry Cummins; Cooper Law Firm, Barry James Cooper, Jr., for applicant.
Irl Richard Silverstein, Gretna; Breazesle, Sachse & Wilson, Peter J. Butler, Jr., New Orleans, for respondent.
Keith J. Hardie, Jr., for amici curiae, French Quarter Citizens Inc., Faubourg Marigny Improvement Association, Faubourg St. John Neighborhood Association, Maple Area Residents Inc., Louisiana Landmarks Society, Vieux Carre Property Owners Residents & Association Inc., Louisiana Association for Justice, St. John Neighborhood Association, and Frank D'Amico, Jr.
Bruce Campbell Dean, Metairie, for amicus curiae, Louisiana Association for Justice.
We granted certiorari in this matter to review the Court of Appeal's ruling that Defendant in this matter, 615 Bourbon Street, L.L.C., as owner and lessor of the premises upon which its lessee operates the bar "The Rock," is not liable to the plaintiffs for the alleged excessive noise associated with the loud music played by the bar, and is therefore entitled to summary judgment. For the reasons that follow, we find that the Court of Appeal erroneously concluded under the facts of this case that the defendant/owner and lessor of this property cannot be held responsible for the actions of its lessee under Article 667 of the Louisiana Civil Code. Accordingly, the Court of Appeal's decision affirming summary judgment is reversed, and the case is remanded for further proceedings.
Peterson M. Yokum is the owner of and resides at the premises located at 723 Toulouse Street in the French Quarter in New Orleans, Louisiana, with his wife, Polly Elizabeth Anderson. The property located at 723 Toulouse Street is zoned "Vieux Carré Commercial District-2 Mixed Residential" ("VCC-2"). The entity 615 Bourbon Street, L.L.C. is the owner and lessor of the premises located at 615-617 Bourbon Street. On October 15, 2003, 615 Bourbon Street, L.L.C. executed a commercial lease of property with O'Reilly Properties, L.L.C. ("O'Reilly"), leasing the premises located at 615-617 Bourbon Street in New Orleans, Louisiana, to O'Reilly to be "used exclusively for legitimate, commercial, purposes ...". Moreover, the lease between 615 Bourbon Street, L.L.C. and O'Reilly stated that "Lessee is obligated not to use same for any purpose that is unlawful or that tends to injure or depreciate the property, and such unlawful, injurious or depreciatory use shall, if not cured after 5 days notice, constitute a breach thereof....".1 The lease also stated that as "additional consideration for this lease, Lessee agrees to maintain at all times during the term of this lease a valid liquor license for the leased premises and to pay all expenses incidental thereto." O'Reilly thereafter began operating the bar The Rock on the premises owned by 615 Bourbon Street, L.L.C2
Plaintiffs, Mr. Yokum and Ms. Anderson, allege that they have been subjected to loud and ongoing live entertainment conducted at the bar known as The Rock, located at 615-617 Bourbon Street, beginning as early as 2003, which has prevented the proper quiet enjoyment of their home. As a result, in 2003, counsel for Mr. Yokum and Ms. Anderson sent separate letters via certified mail, with return receipt requested and confirmed, one to the attention of the Bar Manager at The Rock, 617 Bourbon Street, New Orleans, Louisiana, 70116, and one to 615 Bourbon Street, L.L.C, 3233 Lake Trail Drive, Metairie, Louisiana, 70003. The letter sent to the Bar Manager at The Rock was dated December 29, 2003, and advised him that the repeated and excessive noise emanating from their establishment was interfering with Mr. Yokum and Ms. Anderson's privacy, as well as their ability to use and enjoy their property. The letter further informed The Rock that if it did not reduce the noise emanating from its property, suit would be filed. Counsel also invited the opportunity to mediate and/or negotiate the matter so that it could be resolved without resorting to litigation.
Similarly, the letter sent by counsel for plaintiffs to 615 Bourbon Street, L.L.C, also dated December 29, 2003, included a copy of the aforementioned letter sent directly to The Rock, and informed 615 Bourbon Street, L.L.C. that if its tenant did not immediately cease and desist from its noisy activities, it may be held liable for any damages sustained by its neighbor as a result of its tenant's activities.3
Counsel for plaintiffs also sent a letter, dated April 7, 2005, to The Rock, 615 Bourbon Street, New Orleans, Louisiana, 70130, again informing it of the plaintiffs' claims of loud and offensive noise emanating from The Rock, and that if proper reductions in the noise did not take place, it would be sued. Again, counsel invited the opportunity to mediate and/or negotiate the matter in an effort to avoid litigation.4 However, plaintiffs claim that 615 Bourbon Street, L.L.C. took no action following receipt of the referenced letters to prevent or reduce the continued noise emanating from its property.
Plaintiffs, Peterson M. Yokum and Polly Elizabeth Anderson, thereafter filed a Petition for Damages and Declaratory and Injunctive Relief on July 20, 2005, in the Civil District Court for the Parish of Orleans, naming "615 Bourbon Street, L.L.C. d/b/a The Rock, Old Opera House, Inc. d/b/a Old Opera House and Willie Mintz" as defendants, and attaching the aforementioned letters as exhibits.5 In their petition, plaintiffs allege that defendant 615 Bourbon Street, L.L.C. d/b/a The Rock, located within the "Vieux Carré Entertainment District" ("VCE") "owns and operates a bar between the hours of 3:00 p.m. and 3:00 a.m. with live amplified music and entertainment at 615/617 Bourbon Street, New Orleans, Louisiana" with noises that "are sufficient to cause physical discomfort and annoyance to Peter Yokum and Polly Anderson, and any person of ordinary sensibilities, and constitute a nuisance."
Plaintiffs also allege in their petition that defendants have violated the municipal noise ordinances for the City of New Orleans, specifically, City Code Sections 66-202,6 governing the maximum permissible sound levels, and 66-203(5),7 governing the specific nuisance noises that are prohibited.
Plaintiffs further allege in their petition that 615 Bourbon Street, L.L.C. d/b/a The Rock and Old Opera House, Inc. d/b/a Old Opera House have violated La. R.S. 26:90(A)(14)(a)8 & 26:286(A)(14)(a),9 which plaintiffs state make it unlawful for a person holding a retail dealer permit under the alcoholic beverage control law to play live or recorded music which is so unreasonably intrusive or offensive as to interfere with the comfortable enjoyment of the property of a person.
Finally, and most relevant for purposes of the instant matter, plaintiffs assert in their Petition that defendants in this instance are in violation of Louisiana Civil Code articles 667 and 669,10 relating to nuisance.11
The record does not indicate that defendant 615 Bourbon Street, L.L.C. filed an answer to plaintiffs' Petition for Damages and Declaratory and Injunctive Relief. However, on February 22, 2006, 615 Bourbon Street, L.L.C. did file a Motion for Summary Judgment, which included a Motion for Sanctions12 against plaintiffs and their counsel pursuant to Article 863 of the Louisiana Code of Civil Procedure.13 In conjunction with the Motion for Summary Judgment, defendant 615 Bourbon Street, L.L.C, provided the affidavit of Raymond Gonzales, Jr., Manager of 615 Bourbon Street, L.L.C. The affidavit provided:
1. That 615 Bourbon Street, L.L.C, is the owner of the immovable property bearing Municipal No. 615 Bourbon Street, New Orleans, Louisiana;
2. That said entity entered into a lease of said property with O'Reilly Properties, L.L.C, dated October 15, 2003, a redacted copy of which is annexed hereto, marked Exhibit "615 Bourbon Street, L.L.C.-l";14
3. That 615 Bourbon Street, L.L.C. does not operate any business whatsoever on these premises of the property which it owns at 615 Bourbon Street, New Orleans, Louisiana, and more specifically, it does not own and operate a bar known as The Rock located [sic] 615-617 Bourbon Street.
In addition to its alleged material facts not in dispute,15 defendant asserted in the memorandum in support of its Motion for Summary Judgment that plaintiffs' allegations of noise ordinance violations and the creation of a nuisance arise out of the operation of the business known as The Rock. Defendant further argued in its motion that "[t]he petition contains no allegations whatsoever which would impose liability upon 615 BOURBON STREET, L.L.C, in its capacity as lessor of the premises, and it is further submitted that liability, if any, would arise only out of the operation of La. Civil Code Articles 667 and 668." Defendant therefore asserted that "the issue is thus raised whether or not 615 BOURBON STREET, L.L.C, as lessor, has any liability whatsoever to its neighbors for the use of its premises by a lessee operating under permits issued by the governing authority, in this case, the City of New Orleans." Defendant finally argued in its motion that plaintiffs in this matter would have no standing nor right of action to enforce any alleged violations of any municipal and/or state ordinances, as they are solely within the province of governmental authorities.
Plaintiffs opposed defendant's Motion for Summary Judgment on April 13, 2006, asserting that not only was the motion premature as no discovery had been conducted, articles 667, 668, and 669 of the Louisiana Civil Code dictate that 615 Bourbon Street, L.L.C, as owner of the leased premises, cannot escape liability...
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