Jimmy's Discount Meat Market, Inc. Versus Dimarco Five, LLC and Whitney Investments, LLC

JIMMY'S DISCOUNT MEAT MARKET, INC. NO. 21-CA-178

VERSUS FIFTH CIRCUIT

DIMARCO FIVE, LLC AND WHITNEY COURT OF APPEAL
INVESTMENTS, LLC
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 809-992, DIVISION "B"
HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING

May 18, 2022

MARC E. JOHNSON
JUDGE

Panel composed of Judges Jude G. Gravois,
Marc E. Johnson, and Robert A. Chaisson

MOTION TO DISMISS DENIED;
JUDGMENT ON MOTION TO QUASH REVERSED;
JUDGMENT OF EVICTION VACATED;
REMANDED FOR FURTHER PROCEEDINGS
MEJ
JGG
RAC

COUNSEL FOR PLAINTIFF/APPELLANT,
JIMMY'S DISCOUNT MEAT MARKET, INC.
Kenneth J. Beck

COUNSEL FOR DEFENDANT/APPELLEE,
TERRYTOWN MALL, LLC
Joseph V. DiRosa, Jr.

JOHNSON, J.

Defendant-in-reconvention/Appellant, Jimmy’s Discount Meat Market, Inc.

(hereinafter referred to as “Jimmy’s Market”), appeals judgments that granted an

eviction and rendered rulings on various motions in favor of Plaintiff-in-

reconvention/Appellee, Terrytown Mall, LLC (hereinafter referred to as

“Terrytown Mall”), from the 24th Judicial District Court, Division “B”. For the

following reasons, we deny the motion to dismiss the appeal, reverse the trial

court’s judgment granting Terrytown Mall’s motion to quash, vacate the judgment

of eviction in favor Terrytown Mall, and remand the matter to the trial court for

further proceedings.

FACTS AND PROCEDURAL HISTORY

The facts pertinent to the instant appeal are as follows.

On April 10, 2011, Jimmy’s Market entered into a lease for commercial

property for a term of three years—April 2, 2011 through March 31, 2014—with

DiMarco Five, L.L.C (hereinafter referred to as “DiMarco Five”) for the premises

located at 1055 Whitney Avenue in Terrytown, Louisiana. Among the terms of the

lease, upon a sale or transfer of the leased premise, the purchaser or transferee was

to be bound for the performance of all of DiMarco Five’s agreements and

obligations under the lease. The lease also allowed Jimmy’s Market the right and

option to renew the lease by written notice delivered to DiMarco Five no later than

60 days prior to the expiration date of the primary term and/or renewal for four

additional terms of 36 months each under the same terms, conditions, and

covenants, subject to specified rent amount increases. The lease between Jimmy’s

Market and DiMarco Five was not recorded in the office of mortgage and

conveyance with the Jefferson Parish Clerk of Court. Additionally, Jimmy’s

Market did not exercise its option to renew the lease through written notice to

DiMarco Five.

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Years later, on August 31, 2020, DiMarco Five executed an “Act of Credit

Sale” with Whitney Investments, LLC (hereinafter referred to as “Whitney

Investments”) for the sale of 1055 Whitney Avenue. The act of sale acknowledged

that all leases on the property were transferred and assigned to the account of

Whitney Investments.

On September 7, 2020, Jimmy’s Market filed a “Petition for Injunctive

Relief, Declarative Judgment, and Specific Performance and/or Damages for

Breach of Contract” against DiMarco Five, LLC and Whitney Investments, LLC.

In its petition, Jimmy’s Market alleged that it received a five-day notice to vacate

the premises from Whitney Investments on September 3, 2020. It also alleged that

it had entered into an oral agreement with DiMarco Five that granted it first right to

purchase the building and premises if DiMarco Five ever desired to sell the

premises. Jimmy’s Market sought injunctive remedies for the Whitney

Investments eviction proceedings; a declaratory judgment recognizing its lease

interest in the property and declaration that the lease of the premises was valid;

and, enforcement of the terms of the oral agreement between it and DiMarco Five

or damages, if the property had already been sold in violation of the agreement.

Within a month of the August 2020 sale of 1055 Whitney Avenue, Whitney

Investments executed a “Sales and Assumption” agreement with Terrytown Mall

for the sale of the same premises on September 30, 2020. The act of sale did not

acknowledge the transfer of any leases on the property. A few days later, Jimmy’s

Market amended its petition on October 12, 2020, adding Terrytown Mall as a

defendant. The amended petition alleged that Jimmy’s Market was served with a

five-day notice to vacate the premises by Terrytown Mall on October 8, 2020,

which was the same day that Whitney Investment’s eviction proceeding was

voluntarily dismissed.1 The amended petition alleged that, under Jimmy’s

1
Whitney Investments was later dismissed with prejudice from the instant action.

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Market’s belief, Whitney Investments and Terrytown Mall were not separate and

distinct corporate entities and were corporate shells and pseudonyms for one

individual. In addition to the prayers from the original petition, Jimmy’s Market

sought to bar Terrytown Mall from the premises and enjoin Terrytown Mall from

seeking an eviction.2

In opposition, Terrytown Mall filed an answer and a reconventional demand3

for eviction on January 8, 2021. The demand alleged there was no existing lease

agreement between Terrytown Mall and Jimmy’s Market, and prior to the

acquisition of the property by Terrytown Mall, no written lease agreement bearing

on the property had been recorded in the public record. Because there was no lease

agreement recorded in the public record evidencing Jimmy’s Market’s right to

occupy the property, Terrytown Mall asserted that it was entitled to a judgment of

eviction against Jimmy’s Market. Jimmy’s Market answered the demand and

averred that, while there is no lease agreement with the names Jimmy’s Market and

Terrytown Mall on it, there was a lease on the premises that was transferred and

assigned in the acts of sale. It further averred that the public records doctrine only

applied to third-party transferees, and the lease could not be circumvented by the

sale of the property to a corporate entity that is not separate and distinct. The trial

court ordered that there be separate trials for the original petition and the demand

for eviction, and a hearing on Terrytown Mall’s demand for eviction was set for

March 4, 2021.

Prior to the hearing on the demand for eviction, Jimmy’s Market filed a

2
Jimmy’s Market later amended its petition a second time to withdraw its request for injunctive
relief. The second amended petition added the allegation that Terrytown Mall engaged in deceitful trade
practices.
3
Although Terrytown Mall titled its pleadings as a “Reconventional Demand for Eviction,” the
substance of the pleading is a petition for eviction. Thus, we will refer to the pleading as a demand for
eviction. (See, 9029 Jefferson Highway, L.L.C. v. S&D Roofing, L.L.C., 13-588 (La. App. 5 Cir. 2/26/14);
136 So.3d 313, 316, where this Court has held, “Courts should look through the caption of pleadings in
order to ascertain their substance and to do substantial justice to the parties.” The court has a duty to
recognize the true nature of the pleadings.)

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motion to continue the hearing, arguing that there were open discovery requests

(interrogatories and requests for production) relevant to the issues of the eviction.

It also argued that Whitney Investments and Terrytown Mall effectively refused to

cooperate in the depositions. Terrytown Mall opposed the motion to continue and

subsequently filed a “Motion to Quash Subpoenas.”4 Terrytown Mall’s motion

sought to quash Jimmy’s Market’s subpoena and subpoenas duces tecum. It

argued that Jimmy’s Market had not set forth a basis in its petition to delve into

virtually all of Terrytown Mall’s proprietary financial information.

Before the hearing on the demand for eviction commenced, the trial court

denied Jimmy’s Market’s motion to continue in open court. The trial court then

granted Terrytown Mall’s motion to quash. At the conclusion of the trial, the trial

court granted Terrytown Mall’s demand for eviction. In a written judgment

rendered on March 5, 2021, the trial court ordered Jimmy’s Market to immediately

vacate the commercial premises and to deliver possession of the premises to

Terrytown Mall within 24 hours of rendition of the judgment. On March 8, 2021,

the trial court rendered a written judgment denying Jimmy’s Market’s motion to

continue and granting Terrytown Mall’s motion to quash subpoenas. Jimmy’s

Market now appeals the March 5 and 8, 2021 judgments.

ASSIGNMENTS OF ERROR

On appeal, Jimmy’s Market alleges the trial court erred by: 1) allowing

Terrytown Mall’s demand for eviction to proceed prior to the trial for the

declaratory judgment; 2) granting Terrytown Mall’s motions to quash subpoenas;

3) denying its motion to continue trial; and, 4) granting the demand for eviction.

LAW AND ANALYSIS

Motion to Dismiss

Terrytown Mall has filed a “Motion to Dismiss Appeal as Moot.” In its

4
Terrytown Mall’s motion to quash was joined by Whitney Investments.

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motion, Terrytown Mall asserts that, as of August 10, 2021, Jimmy’s Market had

ceased all business activity, and had removed all inventory and equipment from the

subject property. It argues that the actions of Jimmy’s Market constituted an

“indicia of abandonment” pursuant to La. C.C.P. art. 4731(B)5, and the validity of

the judgment of eviction is now moot.

An issue is “moot” when a judgment or decree on that issue has been

“deprived of practical significance” or “made abstract or purely academic.” B&P

Rest. Grp., LLC v. Delta Admin. Servs., LLC, 18-442 (La. App. 5 Cir. 9/4/19); 279

So.3d 492, 498, writ denied, 19-1755 (La. 1/14/20); 291 So.3d 685. A case is

“moot” when a rendered judgment or decree can serve no useful purpose and give

no practical relief or effect. Id.

In this matter, Jimmy’s Market filed its motion for appeal on March 5,

2021—the same date the judgment of eviction was rendered—and the motion was

granted by the trial court. Jimmy’s Market vacated the premises on August 10,

2021, after the judgment of eviction was rendered and appeal was granted. An

evicted lessee who takes a devolutive appeal does not voluntarily acquiesce in the

judgment when he vacates the premises, and, as a general rule, the right to take a

devolutive appeal is not forfeited by a compliance with the judgment-at-issue.

New Orleans Hat Attack, Inc. v. New York Life Ins. Co., 95-55 (La. App. 4 Cir.

11/30/95); 665 So.2d 1186, 1188, citing Goldblum v. Harden, 183 So.2d 756, 757

(La. App. 4th Cir. 1966); see also, Smith v. Shirley, 01-1249 (La. App. 3 Cir.

2/6/02); 815 So.2d 980, 984, writ denied, 02-688 (La. 5/24/02); 816 So.2d 308.

The reason is that a person who takes only a devolutive appeal from a judgment

against him must submit to the execution of the judgment. Id. If the evictee takes

5
La. C.C.P. art. 4731(B) provides, “After the required notice has been given, the lessor or owner,
or agent thereof, may lawfully take possession of the premises without further judicial process, upon a
reasonable belief that the lessee or occupant has abandoned the premises. Indicia of abandonment include
a cessation of business activity or residential occupancy, returning keys to the premises, and removal of
equipment, furnishings, or other movables from the premises.”

21-CA-178 5

a devolutive appeal, the only relief is monetary damages for wrongful eviction. Id.

(See also, Lorning v. Alden, 01-1126 (La. App. 4 Cir. 2/13/02); 809 So.2d 526,

532, writ denied, 02-1031 (La. 6/7/02); 818 So.2d 772, where the appellate court

held that the issue of whether the trial court erred in granting the rule for

possession is relevant to the issue of damages). Because Jimmy’s Market also

sought damages in this matter, we find that the issue of whether the trial court

properly rendered the judgment of eviction is relevant to the issue of damages;

thus, the instant appeal is properly before us.

Order of Trials

Jimmy’s Market alleges that the trial court erred by allowing Terrytown

Mall’s demand for eviction to proceed prior to its trial for declaratory judgment. It

argues that the demand, which was filed under the summary process, should not

have been allowed to undermine the petition for declaratory judgment, which was

filed as an ordinary proceeding. Jimmy’s Market contends that severing the

demand for eviction from the claims under the ordinary process and allowing the

demand to be tried first denied it due process. It claims that allowing the demand

for eviction to proceed prior to the petition for declaratory judgment denied it the

opportunity to develop its case prior to facing the trial on the eviction proceeding,

and it effectively resolved the case for declaratory judgment without the benefit of

the ordinary process, where it would have had the time and opportunity to conduct

meaningful discovery.

Terrytown Mall avers that the trial court properly held the trial on the

eviction proceeding prior to the petition for declaratory judgment. It maintains that

the eviction proceeding, which is a summary proceeding, could not have been tried

along with Jimmy Market’s ordinary proceeding or converted into an ordinary

proceeding. Thus, Terrytown Mall avers the eviction was properly severed and

tried as a summary proceeding.

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Pursuant to La. C.C.P. art. 4731, if the occupant fails to comply with the

notice vacate required under the Title, the owner may cause the occupant to be

cited summarily by a court of competent jurisdiction to show cause why he should

not be ordered to deliver possession of the premises to the owner. Summary

proceedings are those which are conducted with rapidity, within the delays allowed

by the court, and without citation and the observance of all the formalities required

in ordinary proceedings. Graci v. Gasper John Palazzo, Jr. L.L.C., 09-347 (La.

App. 5 Cir. 12/29/09); 30 So.3d 915, 918, citing La. C.C.P. arts. 2591 and 2592.

The court shall make the rule returnable not earlier than the third day after service

thereof, at which time the court shall try the rule and hear any defense which is

made. La. C.C.P. art. 4732.

Here, there were two types of proceedings remaining in the matter: an

ordinary proceeding (the petition for declaratory judgment, unfair trade practices,

and breach of contract) and a summary proceeding (the demand for eviction). The

demand for eviction, as a summary proceeding, is to be conducted with rapidity

and is not required to observe all of the formalities of an ordinary proceeding.

Graci, supra. Thus, the demand for eviction was not required to be tried with or

after the petition for declaratory judgment. Therefore, we find that the trial court

did not err in trying the demand for eviction prior to the petition for declaratory

judgment.

Motion to Quash

Jimmy’s Market alleges that the trial court erred in granting Terrytown

Mall’s motion to quash the trial subpoenas for Terrytown Mall’s representatives

and the subpoenas duces tecum for Terrytown Mall to produce records at the

eviction trial. It argues that the motion was never served upon it; yet, the trial

court was informed of the lack of service and still ruled upon the motions.

Jimmy’s Market contends that the sought-after witness trial testimony and

21-CA-178 7

production of documents are relevant to issues of the eviction proceeding—just as

they were relevant to the issues of the declaratory judgment request—and being

forced to proceed with the eviction trial without the opportunity to present that

evidence denied it due process. It contends that, regardless of whether it was

recorded, its lease with DiMarco Five was assumed in the Act of Sale from

DiMarco Five to Whitney Investments through an exception to the public records

doctrine. It further contends that, even though there was no mention of the lease in

the second sale to Terrytown Mall, whether Whitney Investments and Terrytown

Mall are parts of a single business enterprise is a crucial question in this matter.

Jimmy’s Market argues that, if it occupied the premises by virtue of a lease

between it and DiMarco Five and that lease was subsequently acquired by Whitney

Investments and Terrytown Mall through their respective purchases of the

property, its defense to the eviction should prevail because the two purchasers are

not separate and distinct business entities. Jimmy’s Market maintains that

Terrytown Mall was not a “third party” purchaser and should not be allowed to, in

effect, circumvent an established exception to the public records doctrine by such

deceptive practices.

Terrytown Mall asserts that the trial court did not err in quashing the trial

subpoenas. It avers that Jimmy’s Market is simply attempting to conflate the

summary eviction proceeding with the issues to be presented in the ordinary

proceeding for the petition for declaratory judgment.

On February 25, 2021, Jimmy’s Market filed two subpoenas directed to the

authorized representatives of Whitney Investments and Terrytown Mall and two

subpoenas duces tecum directed to Whitney Investments and Terrytown Mall. The

subpoenas requested the following information: incorporation papers for Whitney

Investments and Terrytown Mall, including but not limited to all Articles of

Incorporation, bylaws, designation of registered agents for service, amendments to

21-CA-178 8

any of the previous listed items, and any and all stock certificates and minutes of

corporate meetings; financial records for Whitney Investments and Terrytown Mall

from its formation to present date, including but not limited to all bank statements,

income tax returns (including schedules), and W-2 forms and 1099 forms issued;

any and all income and expense sheets for Whitney Investments and Terrytown

Mall or an itemized list of all income and expenses for Whitney Investments and

Terrytown Mall from its formation to present; all written notices and

communications of any kind relating to the proposed and eventual acquisition of

the property located at 1055 Whitney Avenue; and, any and all insurance

documents, insuring the properties owned by Whitney Investments and Terrytown

Mall.

In response, Terrytown Mall along with Whitney Investments filed a motion

to quash the subpoenas. Therein, they argued that a summary action for an

eviction involves only the single issue of whether the owner is entitled to

possession of the premises. They argued that Jimmy’s Market’s subpoenas sought

information regarding allegations that Terrytown Mall and Whitney Investments

are a single business enterprise, and that information sought to convert the

summary eviction proceeding into an ordinary proceeding.

At the hearing on the motion to quash, the trial court granted Terrytown

Mall’s motion. In its oral reasons for judgment, the court found that the business

enterprise claim was not relevant to the eviction proceeding.

Appellate courts review a trial court’s ruling on a motion to quash under an

abuse of discretion standard of review. McMaster v. Union Carbide Corp., 19-

592, p. 2 (La. App. 4 Cir. 7/18/19); --- So.3d ---, 2019WL3243992.

Eviction proceedings are governed by La. C.C.P. arts. 4701, et seq. The

provisions of La. C.C.P. arts. 4701, et seq., provide a summary process for eviction

of a lessee by a lessor because the lease had ended due to expiration of its term or

21-CA-178 9

for other lawful cause. Monroe Housing Authority v. Coleman, 46,307 (La. App. 2

Cir. 5/25/11); 70 So.3d 871, 873; Williams v. Bass, 37,156 (La. App. 2 Cir.

5/14/03); 847 So.2d 80, 82. It is well-settled that a summary action for eviction of

a tenant or lessee under these articles involves the single issue of whether the

lessor is entitled to receive back possession of the leased premises. Graci, 30

So.3d at 918. The adjudication of reconventional demands and any other relief are

determined via an ordinary proceeding. Id.

Under La. C.C.P. art. 4732, the “court shall try the rule [for eviction] and

hear any defense which is made.” (Emphasis added.) See, Nola E., LLC v. Sims,

18-623 (La. App. 4 Cir. 2/13/19); 265 So.3d 1147, 1150. An affirmative defense is

a defense that raises a new matter, which assuming the allegations in the petition

are true, will have the effect of defeating a plaintiff’s demand on its merits. 235

Holdings, LLC v. 235 Enterprises, LLC, 20-658 (La. App. 4 Cir. 12/15/21); 334

So.3d 862, 867. A lessee pleading an affirmative defense to eviction “bears the

burden of proof on that defense, which must be established by a preponderance of

the evidence.” Id.

The primary focus of the public records doctrine is the protection of third

persons against unrecorded instruments by denying the effects of the unrecorded

interests, except as between the parties. McClain v. NMP, LLC, 18-297 (La. App.

5 Cir. 12/12/18); 262 So.3d 409, 420, writ denied, 19-0059 (La. 3/18/19); 266

So.3d 284.

Jimmy’s Market argued that when Whitney Investments purchased the

property from DiMarco Five, it knew of and assented to the lease. Apparently,

Whitney Investments, knowing that it likely would not prevail in a trial on a

petition of eviction, sold the property to Terrytown Market, which was allegedly

part of the same business enterprise. Jimmy’s Market argued that the public

records doctrine only applies to third-party transferees in good faith and not to

21-CA-178 10

sales to one’s self or to a corporate entity that is not separate and distinct from the

seller. Jimmy’s Market argued that the owner of the single business enterprise did

not “cure” the lease issue present with the sale of the property from DiMarco Five

to Whitney Investments by selling the property to allegedly another one of his

companies, and thus by virtue of its lease, Jimmy’s Market had the right to remain

on the premises.

Upon review, contrary to the trial court’s finding, we find that the

information sought in the subpoenas, at least in part,6 is very relevant to Jimmy

Market’s defense to the eviction proceeding. We, thus, find that the trial court

abused its discretion when it quashed the subpoenas in their entirety, thereby

denying Jimmy’s Market at least the opportunity to present its defense and

violating its due process rights. Accordingly, we reverse the trial court’s judgment

granting the motion to quash the subpoenas. Consequently, we also vacate the

judgment granting the eviction and remand the matter to the trial court for further

proceedings.

In light of the above, we pretermit discussion and analysis of the remaining

assignments of error, which are the denials of the motion to continue and the merits

of the eviction proceeding.

DECREE

For the foregoing reasons, we deny the motion to dismiss the appeal, reverse

the trial court’s judgment granting Terrytown Mall, LLC’s motion to quash, vacate

the judgment of eviction in favor of Terrytown Mall, LLC, and remand the matter

to the trial court for further proceedings.

MOTION TO DISMISS DENIED;
JUDGMENT ON MOTION TO QUASH REVERSED;
JUDGMENT OF EVICTION VACATED;
REMANDED FOR FURTHER PROCEEDINGS

6
On remand, the trial court will be required to determine which parts of the subpoenas are
relevant to Jimmy’s Market’s defense to the eviction.

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 18, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-178
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE R. CHRISTOPHER COX, III (DISTRICT JUDGE)
JOSEPH V. DIROSA, JR. (APPELLEE) DANIEL A. RANSON (APPELLEE) KAYLYN E. BLOSSER (APPELLEE)
RYAN C. HIGGINS (APPELLEE)

MAILED
KENNETH J. BECK (APPELLANT)
ATTORNEY AT LAW
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