Silwad Two, L.L.C. VS I Zenith, Inc.
Annotate this Case
Download PDF
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0282 SILWAD TWO L C VERSUS I ZENITH INC I l udgment Rendered p 2 2012 l On Appeal from the Thirly Judicial District Court Second In and for the Parish of Terrebonne State of Louisiana Docket No 000 161 Honorable Randali L Bethancourt Judge Presiding Michael J Samanie Stephen S Stipelcovich Counsel for Defendant Appellant I Zenith Inc Houma Louisiana V D Alex Wells New Counsel for Plaintiff Appellee Orleans Louisiana BEFORE Silwad Two L C WHIPPLE McCLENDON AND HIGGINBOTHAM JJ McCLENDON J In this contract matter the defendant appeals a default judgment that ordered it to install gas pumps on its leased property The defendant also appeals the trial court alternative award of lost profits and attorney fees in s favor of the plaintiff For the reasons that follow we reverse in part amend in part and as amended affirm FACTUAL AND PROCEDURAL HISTORY On January 20 2010 I Zenith Inc I Zenith lessor and Silwad Two LLC Silwad Two lessee entered into a commercial lease of a convenience store located at 6931 Alma Street in Houma Louisiana On October 7 2010 Silwad Two filed a Petition to Enforce Specific Performance or for Damages Resulting from Breach of Contract seeking to enforce renovation provisions in the contract or alternatively for damages for failure to perform In its petition Silwad Two asserted that in accordance with the lease I Zenith was required to renovate an existing bathroom install an additional bathroom install a canopy provide credit card readers and complete pump remediation all replacement of which it had failed to do Thereafter Silwad Two obtained a preliminary default judgment and on April 6 2011 judgment was rendered against I Zenith following a hearing to confirm the default In the judgment the trial court ordered that I Zenith fulfill the terms of the lease by completing installation of gas pumps completing installation of a canopy and completing installation of gas pump card readers by May 31 2011 The judgment further ordered the completion of the installation of the additional bathroom within 120 days of the signing of the judgment reasonable attorney fees in the amount of 8 00 500 and costs Lastly the judgment provided that if the conditions were not met by the date required Silwad Two was entitled to an alternative judgment for damages incurred from breach of contract due to lost profits from the date of judicial demand through the end of the lease at the rate of 17 per gallon on 2 average sales of 1 gallons 400 per day for 1 days 546 for a total of 00 948 367 I Zenith has appealed and assigned the following as error 1 The trial court erred in finding that the commercial lease required I Zenith to install gas pumps 2 The trial court erred in awarding future lost profits 3 The trial court erred in awarding an excessive amount of attorney fees DISCUSSION A judgment of default must be confirmed by proof of the demand sufFicient to establish a prima facie case La C art 1702A P In order for a plaintiff to obtain a default judgment he must establish the elements of a prima facie case with competent evidence as fully as though each of the allegations in the petition were denied by the defendant In other words the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits Grevemberg v G Strategic A P Forecasting Group Inc 06 La 1 Cir 2 959 So 914 0766 App 07 9 2d 18 917 A plaintiff seeking to confirm a default judgment must prove both the existence and the validity of his claim Arias v Stolthaven New Orleans LLC 08 La 5 9 So 815 820 illi 09 3d In order to confirm a default judgment when a demand is based upon a conventional obligation affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissibie self and sufficient proof of such authenticating demand However the court may under the circumstances of the case require additional evidence in the form of oral testimony before entering judgment LSA P C art 1702B 1 The 1 number represents the number of days from the date of judicial demand through 546 the end of the lease or October 7 2010 through December 31 2014 Z The lease provides for attorney fees in Paragraph 16 as follows If an attorney is employed to protect any right of LESSOR or LESSEE arising under this lease the party whose fault necessitates such employment shall pay reasonable attorney fees to the other s 3 Furthermore a default judgment cannot be different in kind from what is demanded in the petition and the amount of damages must be proven to be properly due P C LSA art 1703 Arias 9 So at 820 3d Although courts recognize a presumption that a default judgment is supported by sufficient evidence that presumption does not attach when the record upon which the judgment is rendered indicates otherwise Sessions Fishman v Liquid Air Corp 616 So 1254 1258 La 1993 When reviewing default judgments an 2d appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment Arias 9 So at 818 3d At the confirmation hearing Silwad introduced into evidence a copy of the lease agreement current photographs of the leased premises and the affidavit of Saeed Mohamed The oral testimony of Abdel Faraj Silwad owner was also s offered at the hearing Paragraph 7 of the commercial lease is entitled Repairs and Maintenance and contains the only language in the contract regarding gas pumps provides in pertinent part LESSOR warrants that the leased premises are in good condition LESSEE agrees to keep the premises in good condition during the term of the lease at LESSEE expense and to return them to s LESSOR in the same condition at the termination of the lease normal decay wear and tear excepted s LESSOR obligation to repair shall be limited to necessary repairs to the building roof However LESSOR shall renovate the existing public repair bathroom and install an additional public bathroom at its sole expense within a time in compliance with regulations reasonable of the Parish of Terrebonne Further should the in ground gasoline storage tanks be declared in need of removal by the appropriate governing authority LESSOR agrees to excavate remove and replace these tanks at its expense However should the tank removal be caused by the failure of LESSEE to provide routine maintenance the tanks as mandated by the Department of Environmental Quality or other governing authority then LESSEE shall be obligated to bear the full expense of tank removal In any case in the event of tank removal LESSEE shall repave the area above the tanks re pumps pump islands and any other item install made necessary by the excavation which is located above ground level at no expense to LESSOR LESSOR shall also provide a canopy and card readers at its expense 4 It Nonetheless bathroom following renovation replacement remediation and canopy installation assume responsibility for all repairs and pump lessee maintenance shall LESSEE agrees to obtain all permits and inspections of the underground tanks and other equipment as required by governmental authority Mr Faraj testified at the hearing that he is the owner of Silwad Two and that he entered into the lease with I Zenith for the property in Houma to be used as a gas station Mr Faraj stated that the closest gas station was about two and half one miles away He was then asked Q In the lease it states that I Zenith was supposed to install gas pumps correct A Yes sir Q Have they installed those gas pumps A No Q In the lease it states that I Zenith was supposed to remediate or replace the underground storage tanks correct A Yes sir Q Have they remediated or replaced those tanks A No sir Mr Faraj also testified that I Zenith was supposed to install a canopy and credit card readers in accordance with the lease but did not do so Mr Faraj was then shown photographs of the leased property which he stated showed no gas pumps canopy or credit card readers Mr Faraj also stated that he has managed gas stations for over fifteen years and that a reasonable profit margin on gasoline was about seventeen to twenty cents a gallon He testified that when he signed the lease he anticipated selling 1500 gallons of gasoline per day Mr Faraj then reviewed the affidavit of Mr Mohamed manager of the Texaco gas station 2 miles from the property In his affidavit Mr Mohamed 6 stated that his Texaco station seils 1400 gallons of gas per day Mr Faraj testified that it should take about two to three weeks to install gas pumps if the underground tanks were already present 5 Lastly Mr Faraj testified that he would not have entered into the lease if he knew that I Zenith was not going to install the gasoline pumps Generally legal agreements have the effect of law upon the parties and as they bind themselves they shall be held to a fuli performance of the obligations flowing therefrom C LSA art 1983 Boh Bros Const Co C L v State ex rel Dept of Transp and Development 08 1793 App La 1 Cir 3 9 So 982 984 writ denied 09 La 6 9 09 27 3d 0856 09 5 3d So 870 The interpretation of a contract is the determination of the common intent of the parties C LSA Art 2045 When the words of a contract are clear and explicit and lead to no absurd consequences no further interpretation may be made in search of the parties intent LSA art 2046 The words of C a contract must be given their generally prevailing meaning LSA art 2047 C Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract C LSA art 2048 Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole LSA C art 2050 A determination of the existence or absence of an ambiguity in a contract entails a question of law An appellate review that is not founded upon any factual findings made at the trial court level but rather is based upon an independent review and analysis of the contract within the four corners of the document is not subject to the manifest error rule of law In such cases appellate review is simply whether the trial court was legally correct Boh Bros Const Co L 9 So at 984 Claitor v Delahoussaye 02 C 3d 1632 App La 1 Cir 5 858 So 469 478 writ denied 03 28 2d 1820 03 La 03 17 10 855 So 764 2d I Zenith initially argues that according to the clear terms of the lease it was not required to provide gas pumps to Silwad Two We agree According to the plain language of the contrad of lease there is no language that requires the lessor to provide gas pumps The lease is clear as to those things that I 6 Zenith agreed to do including renovation and repair of the existing public bathroom and installation of a canopy and card readers According to the terms of the contract if the in storage tanks are declared to be in need of ground removal Silwad Two as the lessee agreed to repave the area and reinstall the pumps and pump islands Nonetheless Silwad Two argued that I Zenith agreed to replace the gasoline pumps and relied on the language following bathroom renovation pump remediation and canopy installation for its repiacement argument However looking at Paragraph 7 in toto we cannot say that the lease requires I Zenith to replace the pumps The meaning of this provision is clear that is following any pump remediation or replacement Silwad Two is responsible for all repairs and maintenance See LSA art 2050 C There simply is no evidence in the record that I Zenith agreed to install gas pumps the lease being silent in this regard Thus we reverse that portion of the judgment requiring the completion of installation of gas pumps by I Zenith The judgment provides for an alternative judgment for damages due to lost profits if the conditions of the lease are not fulfilled by a certain date The lost profits were caiculated based on the lack of gasoline sales However because the lease does not require I Zenith to install gas pumps it was error to award lost profits Accordingly we also reverse that portion of the judgment awarding Silwad Two future lost profits Lastly we consider whether the amount of attorney fees awarded was reasonable Factors to be taken into consideration in determining the reasonableness of attorney fees include 1 the ultimate result obtained 2 the responsibility incurred 3 the importance of the litigation 4 amount of money involved 5 extent and character of the work performed 6 legal knowledge attainment and skill of the attorneys 7 number of appearances made 8 intricacies of the facts involved 9 diligence and skiil of counsel and 10 the s court own knowledge See Rule 1 of the Rules of Professional Conduct a 5 3 Louisiana courts require that a judgment be precise definite and certain See Vanderbrook v Coachmen Industries Inc O1 La 1 Cir 5 818 So 906 913 In this 0809 App 02 20 2d matter the alternative judgment is not certain being based on subsequent events 7 State Dep of Transp and Dev v Williamson 597 So 439 442 La t 2d 1992 Anglin v Anglin 09 La 1 Cir 12 30 So 746 752 0844 App 09 16 3d The trial court has much discretion in fixing an award of attorney fees and its award will not be modified on appeal absent a showing of an abuse of discretion Regions Bank v Automax USA L 02 La 1 Cir 6 858 C 1755 App 03 27 2d So 593 595 writ denied 03 La 11 857 So 503 2131 03 7 2d At the hearing the only discussion regarding an attorney fee was s counsel mention of reasonable attorney fees Counsel had a judgment prepared after which there was discussion off the record Judgment was signed for 8 in reasonable attorney fees No evidence was produced showing the 500 time spent by Silwad Two attorney in this matter s However this case involved only the filing of a petition a motion for preliminary default and a hearing to confirm the default judgment At the hearing there was only one witness who testified briefly as shown by less than seven pages of transcribed testimony We find the court abused its discretion in awarding 8 in attorney fees and 500 we will amend the judgment to award 1 in attorney fees 500 CONCWSION For the foregoing reasons we reverse that portion of the judgment ordering the installation of gasoline pumps We also reverse that portion of the judgment ordering an alternative judgment for future lost profits in damages Additionally we amend the judgment to reduce the award of attorney fees to 500 1 In all other respects the judgment is affirmed Costs of this appeal shall be assessed to Silwad Two JUDGMENT REVERSED IN PART AMENDED IN PART AND AS AMENDED AFFIRMED 8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
