Louisiana Court of Appeal, 1976

Baldo v. Thibodeaux

Louisiana Court of Appeal · Decided July 29, 1976 · Beer, Lemmon, Samuel

336 So. 2d 1075; 1976 La. App. LEXIS 3954 (Southern Reporter, Second Series)

Opinion of the Court

LEMMON, Judge.

This is a lessor’s suit for cancellation of a written contract of lease of immovable property and for possession of the premises. After a trial on the merits the trial court rendered judgment in favor of the lessor, and the lessee appealed. On motion to dismiss the appeal, this court ruled that there was no valid judgment of eviction from which an appeal could be taken. See 324 So.2d 457. The case was then tried again on the merits, and judgment was again rendered in favor of the lessor. The lessee’s appeal from that judgment is now before us for review, based on the evidence taken at both trials.1

The lessor sought cancellation on several grounds. However, since there was an undisputed violation of the lease provision concerning liability insurance, we need not discuss the other grounds.

The lease contract required the lessee to maintain liability insurance with specified limits. At the last trial the lessee admitted there was no liability insurance then in effect, explaining:

“Well, each time that I get the insurance, he brings me into court to evict me and I am waiting on decisions of the Court, and there is no use having a policy if you don’t know whether you are going to be there or not. You can’t operate the business if you don’t know whether you’re going to be there or not.”2

The lessee clearly breached the lease by failing to maintain liability insurance. His reason for the failure did not justify the breach, and the evidence did not support the allegations in his pleadings that the lessor’s harassment prevented fulfillment of certain conditions of the lease. Under the facts and circumstances presented in this record the lessor is entitled to cancellation of the lease.

The lessor answered the appeal, seeking damages for a frivolous appeal. All of the other grounds asserted for can*1077cellation involved difficult questions and conflicting evidence, and the grounds as to liability insurance did not occur until after two separate suits had been tried in the trial court. Furthermore, the lessee did present evidence bearing on his allegations of harassment, and we cannot say he was not in good faith in seeking appellate review of this evidence. Under these circumstances we decline to award damages for a frivolous appeal.

The judgment is affirmed. All costs in both the trial court and this court are assessed against defendant.

AFFIRMED.

. There was also an earlier trial in another division of the Civil District Court. The lessor’s appeal in that case was dismissed as untimely. See 295 So.2d 866. The evidence in that case was also introduced in the present case by stipulation.

. A letter from the insurance agency indicated the lessee’s liability insurance expired at the end of the policy term on July 29, 1975 (before the March 31, 1976 trial, but after the May 23, 1975 trial in which we held no valid judgment was rendered).

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