Affordable Care, LLC v. Jeffrey Lee Martin, DDS, A Professional Dental Corporation

Judgment rendered April 13, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,286-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

AFFORDABLE CARE, LLC Plaintiffs-Appellants

versus

JEFFREY LEE MARTIN, DDS, A Defendant-Appellee
PROFESSIONAL DENTAL
CORPORATION

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 627,387

Honorable Ramon Lafitte, Judge

*****

PETTIETTE, ARMAND, DUNKELMAN, Counsel for Appellants,
WOODLEY, BYRD & CROMWELL, L.L.P. Affordable Care, LLC
By: Thomas A. Pressly, IV and Thomas Kennedy DDS

LEWIS BRISBOIS BISGAARD
& SMITH, LLP
By: Nancy A. Cundiff
Caroline J. Sanches

DOWNER, JONES, MARINO Counsel for Appellee
& WILHITE, L.L.C.
By: Michael A. Marino

*****

Before MOORE, ROBINSON, and HUNTER, JJ.

HUNTER, J.

Plaintiff, Affordable Care, LLC, appeals a trial court judgment

denying its petition for eviction and sustaining the peremptory exception of

no right of action filed by defendant, Jeffrey Lee Martin, DDS. For the

following reasons, we affirm.

FACTS

Plaintiff, Affordable Care, LLC (“Affordable Care”), a North Carolina

Corporation, provides management and dental laboratory services to dental

practices nationwide. On August 5, 2002, Affordable Care leased

commercial property on Ashley Ridge Boulevard in Shreveport, Louisiana,

from SunDog, LLC, pursuant to a prime lease agreement.

On July 1, 2003, Affordable Care and defendant, Jeffrey Lee Martin,

DDS (“Martin DDS”), entered into three agreements: (1) a Management

Services Agreement (“MSA”), whereby Affordable Care would provide

management services to Martin DDS; (2) a Dental Laboratory Services

Agreement, pursuant to which Affordable Care would provide dental

laboratory services to Martin DDS; and (3) a Sublease, by which Affordable

Care would lease the premises, equipment, and fixtures to Martin DDS. The

sublease provided, in pertinent part:

***
2. Term of Lease. The term of this Lease shall commence on
July 1, 2003, and shall continue for a period of one (1) year,
unless and until earlier terminated. The term shall be renewed
and extended automatically for successive one-year terms

provided that the Agreement to Provide Management Services
to a Dental Practice between Landlord and Tenant (the “MSA”)
is in effect as of the last day of the current term. Tenant may
terminate this Lease at any time, for any reason upon ninety
(90) days written notice to Landlord. Otherwise, absent a
default hereunder, neither Landlord nor Tenant may terminate

this Lease except in connection with the termination of the
MSA. Termination of the MSA will result in automatic
termination of this Lease[.]
***
17. Option to Acquire Premises or Assume Prime Lease.
Tenant may, at its option, acquire and assume Landlord’s
interest in the Premises (including all equipment and fixtures)
upon termination of the Lease, if all of the following conditions
are fully satisfied.
(a) No less than sixty (60) days prior to the termination of the
Lease, Tenant must deliver to Landlord written notice that
Tenant desires to acquire Landlord’s interest in the Premises
(including all equipment and fixtures); provided, however, if
Tenant does not have at least seventy (70) days advance
knowledge of the Lease’s imminent termination, then Tenant
must deliver the above-mentioned notice to Landlord within ten
(10) days of receipt of such knowledge.
(b) If Landlord does not own the Premises, fixtures, and/or
equipment, but rather leases the Premises, fixtures, and/or
equipment from one or more persons (“Prime Lessors”), then
prior to termination of the Lease, the Tenant shall cause all
Prime Lessors to execute such documents as deemed necessary
or prudent by Landlord to (i) release Landlord from any
obligation to the Prime Lessor from and following the
termination of the Lease and (ii) permit assignment of
Landlord’s leasehold interest in the Premises, fixtures, and/or
equipment to Tenant.
(c) Upon termination of the Lease, Tenant and Landlord must
execute such documents as deemed necessary or prudent by
Landlord to release each party from any obligation to the other
party from and following the termination of the Lease.
(d) Upon termination of the Lease, Tenant must pay to
Landlord, in cash or certified funds, the sum of the following:
(i) the fair market value siting and development services related
to the Premises provided by the Landlord that have not been
paid by Tenant, which value is hereby agreed in good faith to
be $50,000, plus (ii) the greater of the fair market value or book
value of the Landlord’s interest in the Premises (including
fixtures) (but in no event greater than the acquisition costs),
plus (iii) the greater of the fair market value or book value (but
in no event greater than the acquisition costs) of the Landlord’s
interest in the equipment located at the Premises. An appraiser
selected by Landlord shall determine fair market value, and
Tenant shall reimburse Landlord for such appraiser’s costs).

If all of the foregoing conditions are fully satisfied, then, upon
termination of the Lease, Landlord shall convey Landlord’s
interest (whether leasehold or ownership) in the Premises and
all equipment and fixtures to Tenant, and Landlord shall
execute such documents deemed necessary or prudent by
Landlord to perfect such conveyance. Such conveyance shall
2

be as-is, where-is, and free and clear of any mortgage
previously granted by Landlord.
***

On August 31, 2020, Martin DDS notified Affordable Care of its

intent to terminate the agreements and exercise its option to assume the

prime lease under Section 17 of the sublease. Martin DDS requested the

documents and information necessary to satisfy the requirements of Section

17 and inquired as to “any amounts [Affordable Care] believed Martin

[DDS] owed as compensation for the value of Affordable [Care’s] interest in

the Premises.” On October 20, 2020, Martin DDS notified Affordable Care

it had purchased the premises and was now the owner and landlord under the

prime lease.

Thereafter, Affordable Care sold its interest in the sublease,

equipment, and fixtures to Thomas Kennedy, DDS of Louisiana II, a

Professional Dental LLC (“Kennedy DDS”) on October 26, 2020. In turn,

Kennedy DDS leased the premises, equipment, and fixtures back to

Affordable Care. Kennedy DDS, a competitor of Martin DDS, refused to

allow Affordable Care to assign its leasehold interest in the fixtures and

equipment to Martin DDS.1

On October 28, 2020, Affordable Care notified Martin DDS it had

learned Martin DDS had incurably breached the MSA by disclosing

“confidential information of Affordable Care” and had used the

“confidential information” to obtain ownership in the premises. In the

notice, Affordable Care stated, “We believe that the aforementioned conduct

1
The agreement between Affordable Care and Kennedy DDS was not introduced
into evidence and is not a part of this record.
3

is not subject to cure and entitles Affordable Care to terminate the Services

Contract for cause[.]”

However, Affordable Care did not respond to Martin DDS’s request

for documents necessary to exercise the option under Section 17. Therefore,

in November 2020, Martin DDS sent Affordable Care a check in the amount

of $50,000, in a “good faith effort to comply with [Section] 17(d).”

Affordable Care held the check in trust but did not comply with the request

for information pursuant to Section 17 of the sublease.

On November 19, 2020, Affordable Care provided Martin DDS with

notice of the termination of the sublease and notice to vacate the premises.

Affordable Care asserted the MSA had terminated due to the breach by

Martin DDS, which resulted in the termination of the sublease. Affordable

Care informed Martin DDS it was required to vacate the premises on or

before 12:01 a.m. on November 29, 2020. Thereafter, on November 29,

2020, Counsel for Affordable Care sent a notice to Martin DDS’s counsel,

which stated in part:

***
The Cure Time set forth in the Declaration of Default and the
[MSA] has expired. This letter confirms that Affordable has
Cause to terminate the [MSA] under Section V(C)(2) of the
[MSA], that Respondents were provided with the required
period to cure Respondents’ material breaches of the [MSA],
and that Respondents elected not to cure, or even attempt to
cure, Respondents’ material breaches of the [MSA].
Accordingly, the [MSA] is terminated effective November 29,
2020 at 12:01 am., Shreveport, Louisiana time.

Due to the termination of the Services Contract, there is an
“automatic termination” of the Lease between Affordable and
the Practice. (Lease at ¶2). All of the conditions of Section 17
of the Lease have not been “fully satisfied” as of the
termination of the Lease. (Lease at ¶17(d)). Accordingly, the
Practice no longer has the right of possession of the [premises].
However, in order to avoid disruptions in patient care,
Affordable will permit Respondents to continue operations at
4

the Premises until 12:01 a.m. on December 1, 2020, Shreveport,
Louisiana time.
***

On November 30, 2020, Affordable Care learned Martin DDS had

removed the original signage from the building and replaced it with a sign of

a business named “Martin Dentures and Implants.” Martin DDS had also

placed a sign on the premises which read, “THIS LOCATION SOON TO

BE MARTIN DENTURES AND IMPLANTS,” and included the internet

address for the new business.

On December 1, 2020, Affordable Care filed a Petition and Rule for

Eviction, alleging, inter alia: Martin DDS has no legal right to remain on

the premises because the sublease terminated and a notice to vacate had been

provided; and no legal relationship existed between Affordable Care and

“Martin Dentures and Implants,” and “Martin Dentures and Implants” did

not have a legal right to occupy the premises.2

Martin DDS answered the petition and generally denied the

allegations set forth therein. Martin DDS also asserted an affirmative

defense as follows: “[Martin DDS] has validly assumed the Prime Lease

under Section 17 of the Sublease, and therefore, is the Prime Lease holder.”

Martin DDS requested the court to “assume judicial control of the lease to

ensure there is no interruption in patient services.”

On February 1, 2021, Martin DDS filed an exception of no right of

action, arguing Affordable Care no longer had an interest in the premises,

equipment, and fixtures, due to the assignment to Kennedy DDS. On

2
A breach of contract dispute and claims pursuant to the MSA are currently
pending in North Carolina. Only the eviction is at issue in this appeal.
5

February 2, 2021, Affordable Care filed a petition to amend the eviction

proceeding to add Kennedy DDS as a plaintiff.

Following a hearing, the trial court granted the exception of no right

of action as to Affordable Care. The court also denied Affordable Care’s

petition for eviction.

Affordable Care now appeals.

DISCUSSION

Affordable Care contends the trial court erred in converting a

summary proceeding into an ordinary proceeding by hearing arguments

related to breach of contract. Affordable Care argues the trial court

considered Section 17 of the lease agreement, interpreted the contract, and

determined Affordable Care had not met the terms of the agreement.

According to Affordable Care, the trial court’s act of reviewing the contract

and interpreting its meaning converted this action from a summary

proceeding to an ordinary proceeding.

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 for other lawful cause. Monroe Hous. Auth. v.

Coleman, 46,307 (La. App. 2 Cir. 5/25/11), 70 So. 3d 871; Williams v.

Bass, 37,156 (La. App. 2 Cir. 5/14/03), 847 So. 2d 80.3 It is well settled that

a summary action for eviction of a tenant or lessee under these articles

3
La. C.C.P. art. 4702 provides:

When an owner of immovable property wishes to evict the occupant
therefrom, after the purpose of the occupancy has ceased, the owner, or his
agent, shall first cause a written notice to vacate the property to be
delivered to the occupant.

This notice shall allow the occupant five days from its delivery to vacate
the premises.
6

involves the single issue of whether the lessor is entitled to receive back

possession of the leased premises. Id.

In an eviction proceeding, the lessor has the burden of proving, by a

preponderance of the evidence, a valid lease and that the violation of the

lease provides sufficient grounds for an eviction. Guste Homes Resident

Mgmt. Corp. v. Thomas, 12-1493 (La. App. 4 Cir. 5/29/13), 116 So. 3d 987.

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. Guste Homes Resident Mgmt. Corp. v. Thomas, 20-0110 (La. App.

4 Cir. 7/29/20), 302 So. 3d 1181; Jeanmarie v. Peoples, 09-1059 (La. App. 4

Cir. 3/16/10), 34 So. 3d 945.

Affordable Care correctly argues an eviction proceeding is a summary

proceeding designed to determine whether the lessor has a right to be

restored to the possession of the premises. Nevertheless, our law requires

courts to give legal effect to all written contracts according to the parties’

intent as determined by the words of the contract when they are clear,

explicit, and lead to no absurd consequences. Southern Treats, Inc. v. Titan

Properties, L.L.C., 40,873 (La. App. 2 Cir. 4/19/06), 927 So. 2d 677, writ

denied, 06-1170 (La. 9/15/06), 936 So. 2d 1271; First South Farm Credit,

ACA v. Gailliard Farms, Inc., 38,731 (La. App. 2 Cir. 8/18/04), 880 So. 2d

223.

Affordable Care claims entitlement to eviction pursuant to Section 2

of the sublease, while simultaneously arguing the trial court improperly

considered Section 17 of the same agreement. We find the trial court was

constrained to review the entirety of the lease to ascertain the rights of the

parties. In doing so, the trial court did not convert this action from a
7

summary proceeding into an ordinary proceeding. The nature of the

summary eviction proceeding was maintained, and the court correctly

considered whether Affordable Care was entitled to a judgment of eviction

under the terms of the sublease. Accordingly, this argument lacks merit.

Affordable Care also contends the trial court erred in sustaining the

exception of no right of action raised by Martin DDS. Affordable Care

argues it has a real, vested interest in the premises, equipment, and fixtures,

pursuant to the prime lease and the assignment from Kennedy DDS.

Affordable Care further maintains its assignee, Kennedy DDS, sought to be

added as a plaintiff in these proceedings, which renders the exception of no

right of action moot.

The function of an exception of no right of action is to determine

whether plaintiff belongs to the class of persons to whom the law grants the

cause of action asserted in the petition. La. C.C.P. art. 927; Dering v.

Dering, 21-0691 (La. 10/1/21), 324 So. 3d 1042; Turner v. Busby, 03-3444

(La. 9/9/04), 883 So. 2d 412. When the facts alleged in the petition provide

a remedy under the law to someone, but the plaintiff who seeks the relief is

not the person in whose favor the law extends the remedy, the proper

objection is no right of action, or want of interest in the plaintiff to institute

the suit. Howard v. Administrators of Tulane Educ. Fund, 07-2224 (La.

7/1/08), 986 So. 2d 47. The exception of no right of action serves to

question whether the plaintiff in the particular case is a member of the class

of persons that has a legal interest in the subject matter of the

litigation. Dering, supra; Turner, supra.

In the instant case, Martin DDS filed an exception of no right of

action, arguing Affordable Care sold the equipment and fixtures located at
8

the premises and assigned its interest in the sublease to Kennedy DDS.

Therefore, according to Martin DDS, Affordable Care no longer had the

right to institute the eviction proceedings.

During the hearing on the exception of no right of action, the

following colloquy took place:

THE COURT: Listen to me carefully. I want to make sure
we stay on what I’m addressing, not any red
herrings. Kennedy is the owner of the
equipment and fixtures located at the
premises and was the assignee of Affordable
Care’s interest in the sublease, meaning
Kennedy stepped in as the landlord under
the sublease; correct?

COUNSEL FOR
AFFORDABLE
CARE: Correct.

THE COURT: So, Kennedy is now the landlord and Martin
is still the tenant; correct?

COUNSEL FOR
AFFORDABLE
CARE: Correct.

THE COURT: And I believe you argued at – both of you
indicated that, correct me if I’m wrong, but
Dr. Martin has purchased the building;
correct?

COUNSEL FOR
MARTIN DDS: That’s correct, Your Honor.

COUNSEL FOR
AFFORDABLE
CARE: Yes, sir, subject to the prime lease.

THE COURT: All right. So now he becomes the prime
lessor.

COUNSEL FOR
MARTIN DDS: That’s correct.
***
THE COURT: And if, of course, there is an assignment,
there is a document where the sublease was
assigned, then it would be Kennedy’s action
9

as opposed to Affordable. Do you agree
with that?

COUNSEL FOR
AFFORDABLE
CARE: I would agree with that yes, Kennedy is the
sublease.

THE COURT: The landlord in the sublease.
***

Affordable Care admits Kennedy DDS is the owner of the equipment

and fixtures. However, according to Affordable Care, it now leases the

equipment and fixtures from Kennedy DDS, and therefore, Affordable Care

has a real and actual interest in this matter because its “peaceful possession

of the equipment and fixtures has been disturbed by Martin DDS’s refusal to

vacate the Premises.”

The law is well-settled. Eviction is a proper remedy for use by a

lessor, who wishes to obtain possession of the premises when the lessee’s

right to occupancy has ceased. La. C.C.P. art. 4701. Affordable Care

continues to have an interest in the property as the tenant/lessee of prime

lease. However, the eviction action was not brought by Affordable Care to

assert any rights as the tenant under the prime lease. Affordable Care

alleged it was entitled to eviction as the landlord/lessor under the sublease

because termination of the MSA resulted in termination of the sublease.

Counsel for Affordable Care conceded Kennedy DDS, not Affordable Care,

is the current lessor under the sublease. The exception of no right of action

was sustained only as to Affordable Care, and did not include Kennedy

DDS, the added plaintiff. Therefore, we find the trial court did not err in

sustaining the exception of no right of action as it pertains to Affordable

Care. This assignment lacks merit.

10

Affordable Care further contends the trial court erred in denying the

petition for eviction. Affordable Care argues pursuant to the language of

Section 2 of the sublease, Martin DDS’s sublease was terminated upon the

termination of the MSA. Affordable Care also argues it leased the

equipment and fixtures from Kennedy DDS, and as the sole lessee, it has a

right to peaceful possession thereof. Conversely, Martin DDS maintains it

timely notified Affordable Care of its intent to exercise its option under

Section 17 of the sublease. Therefore, according to Martin DDS, the trial

court did not manifestly err in denying Affordable Care’s petition for

eviction.

Generally, an appellate court reviews the factual findings in an

eviction matter under the manifest error standard of review. Fort Miro

Subdivison P’ship v. Gix, 53,591 (La. App. 2 Cir. 4/14/21), 316 So. 3d 185;

Armstrong Airport Concessions v. K-Squared Rest., LLC, 15-0375 (La. App.

4 Cir. 10/28/15), 178 So. 3d 1094; Housing Auth. of New Orleans v. Haynes,

14-1349 (La. App. 4 Cir. 5/13/15), 172 So. 3d 91. However, a question of

contractual interpretation, presented in an eviction case, is subject to de

novo review on appeal. Armstrong Airport Concessions, supra. Further,

when there is no dispute as to the dispositive facts, the issue can be decided

as a matter of law and the review is de novo. Id. Moreover, the issue of

whether or not the language of a contract is ambiguous is an issue of law

subject to de novo review on appeal. French Quarter Realty v. Gambel, 05-

0933 (La. App. 4 Cir. 12/28/05), 921 So. 2d 1025.

Under the manifest error standard, the reviewing court does not

determine whether the trier of fact was right or wrong, but whether its

conclusion was a reasonable one. Stobart v. State, through Dept. of Transp.
11

and Dev., 617 So. 2d 880 (La. 1993). Findings based on credibility

determinations are entitled to great deference. Foley v. Entergy Louisiana,

Inc., 06-0983 (La. 11/29/06), 946 So. 2d 144. Where conflict exists in the

testimony, reasonable evaluations of credibility and inferences of fact should

not be disturbed on review. Stobart, supra; Rosell v. ESCO, 549 So. 2d 840

(La. 1989). If the trial court’s findings are reasonable in light of the record

reviewed in its entirety, an appellate court may not reverse those findings

even though convinced that, had it been sitting as the trier of fact, it

would have weighed the evidence differently. Davidson v. Glenwood

Resolution Auth., Inc., 47,640 (La. App. 2 Cir. 1/23/13), 108 So. 3d

345; Brown Radiator & Frame v. Kidd, 44,354 (La. App. 2 Cir. 6/24/09), 13

So. 3d 1244.

In the instant case, in an effort to determine whether Affordable Care

and/or Kennedy DDS were entitled to a judgment of eviction, the following

exchange occurred:

THE COURT: When Affordable Care was the landlord,
they were not the owner of the fixtures.
Right? Nor the premises. Right?

COUNSEL FOR
AFFORDABLE
CARE: Correct.

THE COURT: So, Affordable Care had to tell Dr. Martin
what was necessary and prudent for them to
be released from the prime lease as well as
released from the fixtures and the
equipment. Right? And I – just tell me, am
I right?

COUNSEL FOR
AFFORDABLE
CARE: As the landlord.

THE COURT: As the landlord, Affordable Care had to do
that upon their request, and [Martin DDS]
12

made the request, Affordable Care didn’t do
it. Right?

COUNSEL FOR
AFFORDABLE
CARE: Correct.
***
THE COURT: We’re just dealing with Affordable Care.
They are the landlord. We are before
October. Let me see Exhibit 1. You’re not
going to confuse me. I’m going to keep
hammering at the question until I get an
answer. As of August 31st, Affordable Care
was the landlord; correct?

COUNSEL FOR
AFFORDABLE
CARE: Yes, sir.

THE COURT: Dr. Martin sent Affordable Care the letter in
August indicating they wanted to exercise
their option. Right?

COUNSEL FOR
AFFORDABLE
CARE: Yes, sir.

THE COURT: Which at that time, Affordable Care had to
provide him what they deemed necessary or
prudent so that Affordable Care could be
released from the prime lease as well as any
obligations under the fixtures and/or
equipment; correct?

COUNSEL FOR
AFFORDABLE
CARE: Correct.

THE COURT: They didn’t do it. Right? For whatever
reason, they didn’t do it?

COUNSEL FOR
AFFORDABLE
CARE: Right.
***
THE COURT: I don’t know what [the drafter of the
sublease’s] intent was, but I know what I
read, and it does not give Affordable the
option, it gives [Martin DDS] the option,
and Affordable has not followed up on
paragraph 17, plain and simple. I am not
13

going to evict [Martin DDS] until they
follow up on what they’re supposed to do,
and if after they do what – Kennedy does
what he is supposed to do, if [Martin DDS]
don’t [sic] follow up with whatever is left
for him to do under 17, he’s out, but until
then, he remains in. The option is not given
to Kennedy. Kennedy is now the landlord.
He does not have the option to say, I don’t
want to give you the fixtures. He has to tell
[Martin DDS] what he deems necessary or
prudent to permit the assignment of
Kennedy’s leasehold interest in the
premises, fixtures and/or equipment to
[Martin DDS]. That’s what he has to do. It
does not say at his option, and that is my
ruling.

He is not going to be evicted until Kennedy
follows up on paragraph 17, and if [Martin
DDS] then drops the ball, he’s out, but until
then, he has done nothing, under this
agreement, he has – actually, he has
followed everything under A., B., C., and D.
Your client, Kennedy, is the landlord. He
has an obligation, he hasn’t done what he’s
required to do, and until then, I’m not going
to kick [Martin DDS] out.
***

We agree. Pursuant to the express language of Section 17 of the

sublease, Martin DDS had the option to “acquire and assume [Affordable

Care’s] interest in the Premises (including all equipment and fixtures) upon

termination of the Lease.” The record reveals Martin DDS notified

Affordable Care of its intent to exercise its option. Rather than complying

with the terms of the sublease and submitting to Martin DDS “such

documents as deemed necessary or prudent,” Affordable Care circumvented

its obligation by selling its interest in the sublease to Kennedy DDS, along

with all equipment and fixtures located in the premises. Thereafter,

Affordable Care deemed Martin DDS in breach of the MSA and declared the

sublease terminated (due to the alleged termination of the MSA). Under the
14

facts of this case, we find the trial court did not err in denying the petition

for eviction.

CONCLUSION

For the reasons set forth herein, the judgment of the trial court is

hereby affirmed. Costs of this appeal are assessed to the appellant,

Affordable Care, LLC.

AFFIRMED.

15