Malik & Sons, LLC v. Circle K Stores Inc., No. 2:2015cv06938 - Document 70 (E.D. La. 2016)

Court Description: ORDER AND REASONS denying 52 Motion for Partial Summary Judgment Renewed; denying 54 Second Motion for Summary Judgment. Signed by Judge Susie Morgan on 12/16/2016. (cg)

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Malik & Sons, LLC v. Circle K Stores Inc. Doc. 70 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A MALIK & SON S, LLC, Plain tiff CIVIL ACTION VERSU S N O. 15 -6 9 3 8 CIRCLE K STORES, IN C., D e fe n d an t SECTION : “E” ( 5 ) ORD ER AN D REAS ON S Before the Court are two m otions for sum m ary judgm ent. On Novem ber 29, 20 16, Plaintiff Malik & Sons, LLC filed its m otion for sum m ary judgm ent, 1 and on Novem ber 30 , 20 16, Defendant Circle K Stores, Inc. filed its m otion for sum mary judgm ent. 2 Both m otions are opposed. 3 Because the m otions address the sam e facts and issues of law, the Court considers them together. For the following reason s, both m otions are D EN IED . BACKGROU N D Plaintiff Malik & Sons, LLC (“Malik”) owns a parcel of land in Covington. 4 Malik alleges it entered into a lease with Defen dant Circle K Stores, Inc. to lease the property. 5 Malik contends it signed the lease at issue on J uly 29, 20 14 and alleges Circle K executed the lease on August 28, 20 14. 6 Malik thus argues that the lease was fully executed on August 28 , 20 14. 7 Malik argues Circle K had a 90 -day “feasibility period,” 1 R. Doc. 52. R. Doc. 54. 3 R. Doc. 55 (Circle K’s opposition to Malik & Sons’ m otion); R. Doc. 56 (Malik & Sons’ opposition to Circle K’s m otion). 4 R. Doc. 1. 5 Id. at 2. 6 R. Doc. 52-1 at 2. 7 Id. Section 4.3 of the lease provides “This Lease and Tenant’s obligations hereunder are subject to Tenant’s satisfaction or waiver of all of the followin g conditions within Ninety Days (90 ) of the full execution of this Lease the “Feasibility Period”). R. Doc. 52-2 at 2. 2 1 Dockets.Justia.com from August 28, 20 14 (through Novem ber 26, 20 14), to conduct its due diligence and term inate the lease or otherwise be obligated to the term s of the lease. 8 Circle K, however, argues the lease was not fully executed until October 7, 20 14, as reflected on Page 1 of the lease, and thus the 90 -day feasibility period did not lapse until J anuary 5, 20 15. 9 On Novem ber 11, 20 14, Circle K advised Malik it was term inating the agreem ent. 10 On Novem ber 24, 20 14, Circle K rescinded the term ination and said “This letter will act as notification that the effective dates and tim ing in the lease dates October 7, 20 14 are still valid and the lease is still valid.”11 On Decem ber 27, 20 14, Circle K notified Malik in writing it was again term inating the lease agreem ent. 12 Malik argues Circle K no longer had the right to term inate the lease because the feasibility period expired in Novem ber. 13 Circle K, however, contends the feasibility period began on October 7, 20 14 and expired on J anuary 5, 20 15, because the lease was not fully executed until October 7, rather than August 28. 14 Malik contends Circle K erroneously places the execution date on October 7, 20 14 solely because an escrow agent wrote October 7, 20 14 on the first page of the docum ent. 15 Under the term s of the lease, Circle K was required to open an escrow account with the escrow agent “upon the execution of the lease.”16 Malik m aintains that date was 8 Id. R. Doc. 54-1. 10 R. Doc. 52-3. 11 R. Doc. 52-4. 12 R. Doc. 52-5. 13 R. Doc. 52-1. 14 R. Doc. 54-1. 15 R. Doc. 52-1 at 2. 16 R. Doc. 52-2 at 1. 9 2 August 28 , 20 14, and because Circle K did not establish the escrow account until October, it breached the agreem ent. On Decem ber 18, 20 15, Malik filed this lawsuit, seeking dam ages under the contract for Circle K’s breach an d failure to perform . Malik also seeks attorney’s fees and costs as provided in the lease agreem ent. On May 18, 20 16, Malik filed a m otion for partial sum m ary judgm ent, arguing the lease was executed on August 28, 20 14 and the feasibility period ended on Novem ber 26, 20 14—before Circle K sought to term inate the lease. 17 On J une 27, 20 16, Circle K filed a m otion for sum m ary judgm ent, arguing the lease was executed on October 7, 20 14 an d that its term ination of the lease on Decem ber 27, 20 14 was within the feasibility period. 18 The Court heard oral argum ents on J uly 13, 20 16, and denied both m otions, finding disputed issues of m aterial facts existed. 19 Both Malik and Circle K re-urge their m otions for sum m ary judgm ent, which are currently before the Court. 20 The m ain issue before the Court on these m otions for sum m ary judgm ent is whether the lease was fully executed on August 28, 20 14, as Plaintiff contends, or on October 7, 20 14, as Defendant contends. SU MMARY JU D GMEN T STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”21 “An issue is m aterial if its resolution could affect the outcom e of the action.”22 17 R. Doc. 26. R. Doc. 30 . 19 R. Doc. 36. 20 R. Doc. 52 (Malik’s m otion for sum m ary judgm en t); R. Doc. 54 (Circle K’s m otion for sum m ary judgm ent). 21 F ED . R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 22 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 18 3 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the eviden ce.”23 All reasonable inferen ces are drawn in favor of the nonm oving party. 24 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the nonm oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 25 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”26 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the nonm oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 27 If the dispositive issue is one on which the nonm oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative eviden ce that negates an essential elem ent of the nonm ovant’s claim , or (2) dem onstrating there is no evidence in the record to establish an essential elem ent of the nonmovant’s claim . 28 When proceeding under the first option, if the 23 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8 ); see also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 24 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 25 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 26 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 27 Celotex, 477 U.S. at 322– 24. 28 Id. at 331– 32 (Brennan , J ., dissentin g); see also St. Am ant v. Benoit, 80 6 F.2d 1294, 1297 (5th Cir. 1987) (citing J ustice Brennan’s statem ent of the sum m ary judgm ent standard in Celotex Corp. v. Catrett, 477 U.S. 317, 322– 24 (1986), and requirin g the m ovants to subm it affirm ative evidence to negate an essential 4 nonm oving party cann ot m uster sufficient eviden ce to dispute the m ovant’s contention that there are no disputed facts, a trial would be useless, and the m oving party is entitled to sum m ary judgm ent as a m atter of law. 29 When, however, the m ovant is proceeding under the second option and is seeking sum m ary judgm ent on the ground that the nonm ovant has no evidence to establish an essential elem ent of the claim , the nonm oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting eviden ce already in the record that was overlooked or ignored by the m oving party.”30 Under either scenario, the burden then shifts back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the nonm ovant. 31 If the m ovant m eets this burden, “the burden of production shifts [back again] to the nonm oving party, who m ust either (1) rehabilitate the evidence attacked in the m oving party’s papers, (2) produce additional eviden ce showing the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explaining why further discovery is necessary as provided in Rule 56(f).”32 “Sum m ary judgm ent should be granted if the nonm oving party fails to respond in one or m ore of these ways, or if, after the nonm oving party responds, the court determ ines that the m oving party has m et its ultim ate burden of persuading the court that there is no genuine issue of m aterial fact for trial.”33 elem ent of the nonm ovant’s claim or, alternatively, dem onstrate the nonm ovant’s evidence is insufficient to establish an essential elem ent); Fano v. O’N eill, 80 6 F.2d 1262, 1266 (citing J ustice Bren nan’s dissent in Celotex, and requiring the m ovant to m ake an affirm ative presentation to n egate the non m ovant’s claim s on sum m ary judgm ent); 10 A CHARLES ALAN W RIGHT, ARTHUR R. M ILLER & M ARY KAY KANE , F EDERAL P RACTICE AND P ROCEDURE §2727.1 (20 16) (“Although the Court issued a five-to-four decision , the m ajority and dissent both agreed as to how the sum m ary-judgm ent burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.” (internal citations om itted)). 29 First N ational Bank of Arizona v. Cities Service Co., 391 U.S. 253, 28 8 – 89 (198 0 ); Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249– 50 (1986). 30 Celotex, 477 U.S. at 332– 33. 31 Id. 32 Celotex, 477 U.S. at 332– 33, 333 n.3. 33 Id.; see also First N ational Bank of Arizona, 391 U.S at 289. 5 LAW AN D AN ALYSIS Louisiana law dictates “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation m ay be m ade in search of the parties’ intent.”34 When the lease is am biguous, the court m ust ascertain the intent of the parties through the use of parol evidence. 35 The first page of the lease states the lease is “dated for reference purposes . . . [and] is m ade and executed by and between” the parties. 36 At the bottom of the sam e page, the lease states “Upon execution of this Lease, Tenant shall open an escrow with Escrow Agent.”37 Section 4.3 of the lease—providing for the feasibility period—states the obligations are subject to waiver within 90 days of “the full execution of the lease.”38 The last page of the lease, above the parties’ signatures, then states “the parties hereto have duly executed this Lease as of the day and year first written above.”39 The Court finds the lease is am biguous. The determ ination of whether a contract is am biguous is a question of law. 40 “A contract is considered am biguous on the issue of intent when either it lacks a provision bearing on that issue, the term s of a written contract are susceptible to m ore than one interpretation, there is uncertainty or am biguity as to its provisions, or the in tent of the parties cannot be ascertained from the language em ployed.”41 It is unclear from the four corners of the lease in this case whether the lease was fully executed upon the signing of the lease by both parties 42 or upon the escrow agent 34 LA. CIV. CODE art. 20 46. Greenw ood 950 , LLC v. Chesapeake Louisiana, LP, 68 3 F.3d 666, 669– 70 (5th Cir. 20 12). 36 R. Doc. 52-2 at 1. 37 Id. 38 Id. at 2. 39 Id. at 24. 40 Henly v. Phillips Abita Lum ber Co., 971 So. 2d 110 4, 110 9 (La. Ct. App. 1 Cir. 10 / 3/ 0 7). 41 Cam pbell v. Melton, 817 So. 2d 69, 75 (La. 20 0 2). 42 Malik sign ed the lease on J uly 29, 20 14 and Circle K signed the lease on August 28, 20 14. 35 6 writing the date on the lease and opening the escrow account. 43 Therefore, the lease is susceptible to m ore than one interpretation, there is uncertainty or am biguity as to its provisions, and the intent of the parties cannot be ascertained from the lease language. Because the language of the contract is unclear and am biguous, it is necessary to go beyond the lease to determ ine the intent of the parties. 44 “The in tent of the parties constitutes a genuine issue of m aterial fact which m ust be decided on a full trial on the m erits.”45 “[I]n m otions for sum m ary judgm ent where a contract is am biguous and the intent of the parties becom es a question of fact, . . . granting a sum m ary judgm ent is not appropriate.”46 The Court has already determ ined disputed issues of m aterial facts exist with respect to the intent of the parties. 47 After reviewing the parties’ ren ewed m otions for sum m ary judgm ent, the Court finds genuine disputes of m aterial facts rem ain with respect to the parties’ intent. CON CLU SION IT IS ORD ERED that Malik & Sons’ renewed m otion for partial sum m ary judgm ent 48 is D EN IED . IT IS FU RTH ER ORD ERED that Circle K Stores, Inc.’s second m otion for sum m ary judgm ent 49 is D EN IED . 43 The escrow agent wrote October 7, 20 14 on the lease, which is the day she opened the escrow account. Eiche v. E. Baton Rouge Par. Sch. Bd., 623 So. 2d 167, 169 (La. Ct. App. 1 Cir. 7/ 2/ 93), w rit denied, 627 So. 2d 657 (La. 1993). 45 Fed. N at. Mortg. Ass’n v. Sethi, 557 So. 2d 354, 356 (La. Ct. App. 4 Cir. 1/ 30 / 90 ). 46 Carter v . BRMAP, 591 So. 2d 1184, 1189 (La. Ct. App. 1 Cir. 11/ 22/ 91) (citin g Dixie Cam pers, Inc. v. Vesely Co., 398 So. 2d 10 87 (La. 1981)). 47 R. Doc. 36. 48 R. Doc. 52. 49 R. Doc. 54. 44 7 N e w Orle a n s , Lo u is ian a, th is 16 th d ay o f D e ce m be r, 2 0 16 . ______________________ ______ S U SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 8

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