 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Dore! Energy Corp. v. Massari11/10/2004
REVERSED.
This is a suit to cancel a lease. The trial court entered judgment November 19, 2003, canceling the lease by summary judgment. We reverse.
FACTS
On February 2, 1983, Cameron Meadows Land Company granted a hunting lease to Kerry M. Massari. The lease was valid for a ten-year term and contained two options, each to renew for a ten-year period. Subsequently in 1995, Dore! Energy Corporation (hereafter referred to as Dore!) purchased the land from Cameron Meadows Land Company. On September 26, 2001, Mr. Massari donated the lease to Lawrence P. Simon, Jr. and Edward A. Pratt. Dore! was not informed of the donation until January 2002, when Mr. Simon sent a letter along with the annual rent payment. Dore! refused to accept the rent from anyone other than Mr. Massari stating that the donation violated the lease's non-assignment clause. Dore! requested that the donation be rescinded. Following this correspondence, the donation was rescinded and Mr. Massari paid the rent.
Shortly after rescinding the donation, Mr. Massari exercised the option to renew the lease for another ten-year period. Mr. Pratt paid the annual lease rental in 2003. Upon receipt, Dore! returned the payment to Mr. Pratt. Mr. Pratt then sent Dore! a letter explaining that Mr. Massari had once again donated the lease to him on October 16, 2002. Mr. Pratt attached a copy of the donation to the letter he sent Dore!. On this second donation, Dore! filed suit to cancel the lease.
PROCEDURAL HISTORY
Both parties filed for summary judgment. On November 19, 2003, the court granted Dore!s motion for summary judgment and cancelled the lease. The court denied the defendant's summary judgment motion. Defendants-appellants timely filed a devolutive appeal.
ASSIGNMENT OF ERRORS
1) Whether the prohibition in the hunting lease against an assignment or sublease included a prohibition of the donation at issue from Mr. Massari to Mr. Pratt?
2) If the court finds that the donation is a breach of the lease, does the resolutory condition in the donation of the hunting lease operate to rescind the donation?
3) Whether, if this court should find that the donation violates the terms of the lease and that the resolutory condition is ineffective, the court should (I) grant the lessee ten (10) days within which to correct the donation by rescinding the donation, and (II) not declare a termination or cancellation of the lease unless there is a failure to make such correction within those ten days?
LAW AND ANALYSIS
The proper standard of review for an appellate court considering summary judgment is de nova. "Appellate courts review summary judgments de novo. It is well established that a summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law." Palma, Inc., v. Crane Servs. Inc., 03-0614, p. 3 (La.App. 3 Cir. 11/5/03), 858 So.2d 772, 774. (Citations Omitted.) The Louisiana Supreme Court has provided guidance in determining when a fact is material.
A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. " acts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." Simply put, a "material" fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact
Page 1 2 3 4 5 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|