Fruge Aquafarms, Inc. v. Robert R. Hicks, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-425

FRUGE AQUAFARMS, INC.

VERSUS

ROBERT R. HICKS, JR.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 2014-11142
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and John E.
Conery, Judges.

AFFIRMED.

Stephen A. Stefanski
Edwards, Stefanski & Zaunbrecher, L.L.P.
Post Office Drawer 730
Crowley, Louisiana 70527
(337) 783-7000
COUNSEL FOR DEFENDANT/APPELLEE:
Robert R. Hicks, Jr.

Michael H. Landry
Landry, Landry & Landry
Post Office Box 1368
Crowley, Louisiana 70527
(337) 788-1850
COUNSEL FOR PLAINTIFF/APPELLANT:
Fruge Aquafarms, Inc.

CONERY, Judge.

This case involves a dispute over the terms of an agricultural and aqua-

cultural lease (2010 Lease) between the landowner, Robert R. Hicks, Jr. (Hicks) and

the tenants, Fruge Aquafarms, Inc. (Fruge) owned by Mark Rufus Fruge, II and his

brother Michael G. Fruge. After a hearing on the merits on December 4, 2017 the

trial court ruled in favor of Hicks finding that the 2010 Lease at issue was clear and

unambiguous and terminated at midnight on January 1, 2015. An amended final

judgment was signed on June 19, 2018 and filed on June 25, 2018. Fruge timely

appealed. For the following reasons, we affirm the amended judgment of the trial

court in its entirety.

PROCEDURAL HISTORY

Fruge is in the business of “farming” rice, soybeans, wheat, and crawfish.

Fruge entered into a lease covering approximately 232 acres with Hicks in 2005.

There was a dispute between Fruge and Hicks over payment for the harvest of

crawfish under the 2005 Lease. The parties were able to resolve that dispute and

eventually signed the 2010 lease at issue. Section 2 of the 2010 Lease clearly stated

that the term of the 2010 Lease commenced on January 1, 2010 and ended at

midnight on January 1, 2015.

The Fruge petition alleged that Fruge was granted the authority to plant rice,

soybeans, wheat, and crawfish “only during the term of this lease in keeping with

the farming practices for the cultivation of crops in the locality of said property.” 1

The second paragraph of Section 10 of the 2010 Lease entitled “Condition and

Surrender,” contains the disputed terms of the 2010 Lease and provides, “Lessor

agrees that if the Lessor terminates the lease for any reason, that the Lessee shall

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Crawfish is considered an aquacultural crop and was “farmed” by Fruge on the property
in question in conjunction with the rice crop.

have until the following July of the successive year to complete the harvest of all

crawfish.” (Emphasis added.)

The Fruge petition contended that the terms cited in the second paragraph of

Section 10 “memorializes the custom and practice in this venue regarding the

farming of crawfish, and in fact reflected the timing of the plaintiff’s crawfish

harvest for the many years it has farmed the defendant’s land.” The customary

“planting” for the “crawfish harvest” in a particular year traditionally begins in April

or May when live crawfish are “seeded” in the acreage in question, with the actual

“harvest” occurring between January and June of the following year. Fruge claims

that under its interpretation of the 2010 Lease, it should have been able to harvest

the crawfish crop it planted in April to July of 2014 through June of 2015.

The Fruge petition was prompted by correspondence dated October 15, 2014

from Hicks to Mark Fruge, indicating Hick’s intention not to renew the 2010 Lease

at its “expiration” on January 1, 2015. Hicks told Fruge not to make any preparations

for “spring planting for any type of crop or crawfish activities in preparation for

spring harvest or crawfishing, as there will be no other activity including crawfish

harvesting after January 1, 2015.” Fruge claims Hicks knew that he had already

“planted” or “seeded” crawfish before October 15, 2014, and knew that Fruge, in

accordance with traditional crawfish farming practices, intended to “harvest” the

crawfish between January and June of 2015, after the lease had technically

“terminated.”

The Fruge petition alleged that Fruge attempted to resolve the dispute but was

met with an October 30, 2014 letter from Hicks reiterating that Fruge would “not

have permission to harvest crawfish on the tracts made subject to the lease,” or be

allowed on the property after January 1, 2015.

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Fruge’s petition then sought a preliminary injunction and specific

performance of the 2010 Lease to allow Fruge to remain on Hicks’ land between

January and June of 2015 in order to “harvest” the crop of crawfish it had already

planted and to use the equipment necessary to “complete that harvest by July 2015.”

In the alternative, if Fruge was not allowed to harvest the crawfish, then Fruge sought

damages “concerning its preparation of a crawfish crop, which would be proven at

trial.”

Fruge also filed a petition for an injunction seeking to enjoin Hicks from

barring Fruge from entering the leased property and harvesting the crawfish. The

hearing on Fruge’s preliminary injunction was held on January 5, 2015 and denied

by the trial court in a judgment signed February 9, 2015.

On January 26, 2015, Hicks answered Fruge’s petition for specific

performance, and included a reconventional demand against Fruge seeking damages

for Fruge’s failure to accept the termination of the lease and vacate Hicks’ property,

as well as to pay Hicks the landlord’s share of the rice crop in accordance with the

2010 Lease terms. Hicks claimed that the actions of Fruge constituted “tortious

interference” with his right to negotiate a new farm lease for use of his property as

of January 1, 2015.

Fruge answered Hicks’ reconventional demand and filed its first amending

and supplemental petition, changing the title of Fruge’s original petition to

“PETITON FOR SPECIFIC PERFORMANCE AND/OR DAMAGES.”

Following a trial on the merits on June 27, 2016, the trial court issued a

judgment dated July 11, 2016, in favor of Hicks, dismissing all claims made by Fruge

against Hicks with prejudice. The trial court further awarded Hicks $23,000.00 in

damages on his reconventional demand against Fruge, “as full satisfaction of the

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crop revenue due and owing to Robert R. Hicks, Jr. for the 2014 rice crop pursuant

to the provisions of the lease agreement which existed between the parties.” All costs

of the proceedings were assessed against Fruge.

ORIGINAL APPEAL

Fruge timely appealed the judgment of the trial court dated July 11, 2016,

dismissing its claims against Hicks with prejudice. However, Fruge did not appeal

the damages awarded to Hicks in his reconventional demand against Fruge in the

amount of $23,000.00 for the 2014 rice crop as per the provisions of the 2010 Lease.

Therefore, that portion of the trial court’s July 11, 2016 judgment is final.

The original appeal of this case resulted in a panel of this court vacating and

remanding the remaining portion of the July 11, 2016 trial court’s judgment denying

Fruge relief in connection with the trial on the merits of its claims against Hicks.

Fruge Aquafarms, Inc. v. Robert R. Hicks, Jr., 16-1001 (La.App. 3 Cir. 5/3/17), 218

So.3d 1106. The panel’s action was based on the failure of the parties to properly

submit into evidence in the trial court at either the hearing on Fruge’s injunction held

on January 5, 2015 or the trial on the merits held on June 27, 2016, the initial 2005

Lease or the subsequent 2010 Lease. “Evidence filed into the record, but not

introduced formally at trial, may not be considered by the appellate court.” Fruge,

218 So.3d at 1111, (citing David v. Cajun Painting Inc., 92-722 (La.App. 5 Cir

1/25/94), 631 So.2d 1167, writs denied, 94-972, 94-994 (La. 6/3/94), 637 So.2d 508).

The panel further found that no evidence was offered by either party at the

two hearings and stated, “As there is no record of the petition for injunction

purportedly heard on January 5, 2015[,] and no transcript of the hearing to establish

what evidence, if any was considered, we must treat that proceeding as having no

consequence.” Fruge, 218 So.3d at 1111-12. Therefore, the panel found, “Evidence

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not properly and officially offered and introduced into evidence cannot be

considered, even it is physically placed in the record.” Fruge, 218 So.3d at 1112

(citing Meaux v. Miller, 08-712 (La.App. 3 Cir. 12/10/08), 999 So.2d 281).

Accordingly, without the introduction of the 2010 Lease, “[t]here was no trial

at all, only the discussion of the issues by the trial court and counsel, along with

arguments of counsel.” Fruge, 218 So.3d at 1113. The original trial court judgment

in that appeal was vacated, and the case was remanded to the trial court for a hearing

on the merits of Fruge’s claims. Id.

DISCUSSION OF THE TRIAL ON REMAND

Trial on the merits was held on December 4, 2017, as ordered by this court.

The only issue on remand was the interpretation of the terms of the 2010 Lease

executed on June 18, 2010 between the lessor, Hicks, and Fruge, the lessee. Certified

copies of the prior 2005 Lease between the parties, as well as the 2010 Lease at issue

were submitted into evidence as exhibits “Joint 1” and “Joint 2.” 2 The previous

panel of our court had discussed the pertinent portions of the 2010 Lease as follows:

The lease involved six separately described tracts of land and was for
the specific purpose of permitting Fruge to “use and occupy said
premises for agricultural and aquacultural purposes only.” The lease
further provided Fruge the “authority to plant said premises in rice,
soybeans, and wheat, and to farm crawfish, only during the term of this
lease in keeping with the farming practices for the cultivation of crops
in the locality of said property.” The term of the lease as specifically
stated therein “is five (5) years, commencing on January 1, 2010, and
ending at midnight on January 1, 2015.” As to rent, the lease provided
that Fruge would pay “Twenty-five (25%) Percent of the gross revenue
derived from the production of rice; and Fifteen (15%) Percent of the
gross revenue derived from the production of soybeans” and further
provided that Fruge would pay “FORTY AND NO/100 ($40.00)
DOLLARS per acre per year for each acre on which crawfish
operations are conducted.” Further, Fruge agreed to “[r]emove any of

2
The trial court allowed the proffered testimony of Mr. Mark Fruge at the hearing and a
proffered affidavit from Mr. Michael Fruge was submitted after the hearing, pursuant to La.Code
Civ.P. art. 1636. However, neither proffer was considered by the trial court in its ruling and will
not be considered by this court on appeal. See Derouen v. Nelson, 09-647 (La.App. 3 Cir. 3/10/10),
32 So.3d 1079.
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its crops from the leased premises prior to the expiration of this lease,
it being agreed between the parties that upon Lessee’s failure to do so,
title thereto shall thereupon vest in Lessor and Lessee shall forfeit any
rights therein.”

Fruge, 218 So.3d at 1108.

The second paragraph of Section 10 of the 2010 Lease entitled “CONDITION

OF SURRENDER” is the basis of the dispute between the parties and provides,

“Lessor agrees that if the Lessor terminates the lease for any reason, that the

Lessee shall have until the following July of the successive year to complete the

harvest of all crawfish.” (Emphasis added.)

The trial court issued its ruling on the record and found once again in favor

of Hicks as follows:

The Court: Okay. So as I ruled before, I certainly, can see
how Mr. Fruge and his brother believed that they had the right to
harvest his crawfish on their interpretation of the lease. The problem,
as I had said before, the lease speaks for itself. The lease terminated
on January – actually, December 31, 2014. Certainly and
unambiguously, by the terms of the agreement, it states that. The
provision that came forth that caused the controversy talked in terms
of the lessor terminating the lease. For me, in my interpretation,
is a termination of the lease is different than the ending of a lease.
And I believe the way that I have to interpret, and the way it’s written,
would be that if the lessor terminated the lease prior to its ending,
that the lessee would have the right to harvest their crops.

In this situation, the lease ended and the lessee should have
known that the lease was over. Obviously, they were confident that
they weren’t going to get an additional lease based on the
relationship between the lessor and themselves. And I think, again,
I’m not faulting them for believing that, but they believed it, and it’s
not what the law for me provides. The Third Circuit may interpret
it differently, but I, certainly, see no ambiguity to the lease. It
terminates on that date, and I do not believe that language gives them
an additional six (6) months to go beyond the end of the lease. . . .

For those reasons, the Court declares the lease to have been
terminated January 1 or December 31, which ever it is, as per the
written lease. And I’ll sign a judgment on presentation, which
should be circulated to all parties.

(Emphasis added.)
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The initial formal judgment was signed by the trial court on January 22, 2018,

and filed on January 26, 2018, from which Fruge timely appealed. However, this

court then issued a rule to show cause on June 11, 2018 to appellant as to why the

appeal should not be dismissed due to the lack of “proper decretal language” in the

trial court’s January 22, 2018 judgment, rendering “this matter improperly before us

on review.” We required a response by June 26, 2018.

Fruge timely responded with an amended judgment signed June 19, 2018 and

filed on June 25, 2018, which contained the proper decretal language necessary for

this court to maintain jurisdiction over Fruge’s appeal.

ASSIGNMENT OF ERRORS

1. The trial court committed reversible error by finding the contract at
issue was not ambiguous and/or that it did not lead to absurd
consequences, and therefore ruling all extrinsic evidence of the
parties’ intent inadmissible.

2. The trial court committed reversible error by ruling that the lease at
issue did not allow Petitioner/Appellant[,] Fruge Aquafarms, Inc. to
harvest the 2014 crawfish crop through July of 2015.

3. The Trial Court committed reversible error by excluding the
testimony of Mike Fruge as to the damages sustained by
Petitioner/Appellant, Fruge Aquafarms, Inc.

LAW AND DISCUSSION

Standard of Review

“When a trial court’s interpretation of a contract is not based upon any factual

findings, but, rather, is based upon a review of the contract’s language, the manifest

error standard of review does not apply.” Derouen v. Nelson, 09-467, p. 3 (La.App.

3 Cir. 3/10/10), 32 So.3d 1079, 1082. See also Campbell v. Evangeline Par. Police

Jury, 14-1301 (La.App. 3 Cir. 5/6/15), 164 So.3d 408, writ denied, 15-1067 (La.

9/11/15), 176 So.3d 1043. A review of the record indicates that the trial court

allowed a proffer of the testimony of Mark Fruge and a proffer of an affidavit of
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Michael Fruge in which they explained their interpretation of Section 10 of the 2010

Lease and their claimed damages.

Although the trial court discussed Fruge’s interpretation of the 2010 Lease

provisions in its reasons, the trial court based its decision on the plain wording of the

contract and did not consider the evidence introduced by proffer. Accordingly, we

will conduct a de novo review in this case. See Derouen, 32 So.3d 1079.

Contract Interpretation

Louisiana Civil Code Article 1848 provides in pertinent part, “Testimonial or

other evidence may not be admitted to negate or vary the contents of an authentic act

or an act under private signature.”

The Louisiana Supreme Court in Clovelly Oil Co., LLC v. Midstates

Petroleum Co. LLC, 12-2055, pp. 5-6 (La. 3/19/13), 112 So.3d 187, 192 (footnotes

omitted) (emphasis added), provided the general principles of contract interpretation

a court must apply as follows:

“Contracts have the effect of law for the parties” and the
“[i]nterpretation of a contract is the determination of the common intent
of the parties.” The reasonable intention of the parties to a contract is
to be sought by examining the words of the contract itself, and not
assumed. “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.” Common intent is determined, therefore,
in accordance with the general, ordinary, plain and popular meaning of
the words used in the contract. “Accordingly, when a clause in a
contract is clear and unambiguous, the letter of that clause should
not be disregarded under the pretext of pursuing its spirit, as it is
not the duty of the courts to bend the meaning of the words of a
contract into harmony with a supposed reasonable intention of the
parties.” However, even when the language of the contract is clear,
courts should refrain from construing the contract in such a manner as
to lead to absurd consequences. Most importantly, a contract “must be
interpreted in a common-sense fashion, according to the words of the
contract their common and usual significance.” Moreover, a contract
provision that is susceptible to different meanings must be interpreted
with a meaning that renders the provision effective, and not with one
that renders it ineffective. Each provision in a contract must be

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interpreted in light of the other provisions so that each is given the
meaning suggested by the contract as a whole.

Assignments of Error One and Two

In assignment of error one, Fruge claims that the trial court committed

reversible error by finding that the portion of the contract at issue was not ambiguous,

thereby excluding all extrinsic evidence. In assignment of error two, Fruge claims

that the trial court’s ruling kept it from harvesting the 2014 crawfish crop through

July of 2015 even though Fruge had fully planted the crop and incurred all the

expenses incidental thereto. We will consider these issues together.

As previously discussed, the 2010 Lease at issue between Hicks and Fruge,

Section 2 provided, “The term of this lease is five (5) years, commencing on January

1, 2010, and ending at midnight on January 1, 2015.” The portion of the lease at

issue, Section 10, paragraph two provides, “Lessor agrees that if the Lessor

terminates the lease for any reason, that the Lessee shall have until the following

July of the successive year to complete the harvest of all crawfish.” (Emphasis

added.)

The trial court in its amended judgment dated June 19, 2018, found that the

2010 Lease between the parties was clear and unambiguous as to its date of

termination. The Lessor, Hicks, did not terminate the lease. The lease simply ended

at midnight on January 1, 2015 by its clear terms.

The trial court in its oral reasons issued on December 4, 2017, again stated

that the contested provision “talked in terms of the lessor terminating the lease.” The

trial court found a distinction between the “ending of a lease” and the language in

the contested provision which protected the lessee if “the lessor terminated the

lease prior to its ending.” (Emphasis added.)

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The trial court found that this clause was not ambiguous. We agree. The 2010

Lease, by its plainly worded terms, ended at midnight on January 1, 2015, and

nothing in the second paragraph of Section 10, provides for an additional six months

that extends the 2010 Lease beyond the end of the stated term in order for Fruge to

“harvest” the crawfish crop it allegedly “planted” in 2014.

Louisiana Civil Code Article 2056 provides, “In case of doubt that cannot be

otherwise resolved, a provision in a contract must be interpreted against the party

who furnished its text.” Fruge’s attorney prepared the lease provisions at issue. If

there is an ambiguity, and we find none, any ambiguity would be construed against

Fruge, as its attorney proposed the language in question. The 2010 Lease as written

“terminated” at midnight on January 1, 2015 and was not “terminated by the Lessor.”

Moreover, if Fruge had any doubts as to whether it would be allowed to harvest the

2015 crawfish crop between January and June of 2015, it could have and should

have clarified that issue before it seeded the crawfish crop in 2014.

Counsel for Fruge equates the action or inaction by Hicks “allowing” Fruge

to plant but not harvest the crawfish crop as equivalent to an unlawful termination

or unjust enrichment. However, the trial court found that Fruge planted the

crawfish knowing full well the 2010 Lease terminated by its own terms before Fruge

would be able to harvest the crop.

After a de novo review of the record, we find no error in the trial court’s ruling.

We find that Fruge’s assignments of error one and two have no merit.

Assignment of Error Three

Having found that the trial court correctly interpreted the 2010 Lease at issue,

Fruge’s assignment of error three based on the exclusion of the proffered evidence

is moot.

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CONCLUSION

Considering the foregoing reasons, we affirm the trial court’s amended

judgment dated June 19, 2018 in favor of Robert R. Hicks and against Fruge

Aquafarms, Inc. in its entirety, thereby dismissing any and all claims made by Fruge

Aquafarms, Inc. against Robert R. Hicks with prejudice. All costs of this appeal are

assessed to Fruge Aquafarms, Inc.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform

Rules - Courts of Appeal, Rule 2-16.3

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