Burgers v. Bickford et al

Filing 130

ORDER granting in part and denying in part 100 Motion for Partial Summary Judgment; granting in part and denying in part 100 Motion for Summary Judgment; granting 101 Motion for Summary Judgment. Signed by Judge Jay C. Zainey. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILHELMUS BURGERS

CIVIL ACTION

VERSUS

NO: 12-2009

KENNETH W. BICKFORD, ET AL.

SECTION: "A" (1)

ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment to
Enforce Promissory Notes and for Summary Judgment on Defendants'
Counterclaims (Rec. Doc. 100) filed by Plaintiff Wilhelmus Burgers.
Defendants

NOKWB,

LLC,

NOCAB,

LLC,

NODAB,

LLC,

Chappapeela

Development Corporation, and French Creek Development, LLC oppose
the motion. Also before the Court is a Motion for Summary Judgment
on Counterclaims of Defendants GJFB, LLC and GJBUF, LLC (Rec. Doc.
101) filed by Plaintiff Wilhelmus Burgers.
and GJBUF, LLC oppose the motion.

Defendants GJFB, LLC

The motions, set for submission

on March 11, 2015, are before the Court on the briefs without oral
argument.

For the reasons that follow, the Motion for Partial

Summary Judgment to Enforce Promissory Notes and for Summary
Judgment on Defendants' Counterclaims (Rec. Doc. 100) is GRANTED IN
PART and DENIED IN PART.

The Motion for Summary Judgment on

Counterclaims of Defendants GJFB, LLC and GJBUF, LLC (Rec. Doc.
101) is GRANTED.
1

I. BACKGROUND1
Plaintiff alleges that in 2007, Defendants Kenneth Bickford
("Bickford") and William Hindman ("Hindman") approached him seeking
loans to finance the construction of a mixed-use residential
development project in Tangipahoa Parish.

Plaintiff alleges that

Bickford and Hindman informed Plaintiff that Bickford and members
of Bickford's immediate family owned the land upon which the
project would be constructed and that Hindman was an experienced
real estate developer who would manage the project.
In 2009, Plaintiff entered into a formal agreement to fund the
construction

of

the

project.

According

to

Plaintiff,

this

agreement was represented in two related sets of documents – three
identical promissory notes and three identical "Master Agreement,
Development and Term Loan Agreements" executed between Plaintiff
and three LLCs (NOKWB, LLC; NOCAB, LLC; and NODAB, LLC), each
controlled separately by Bickford and his two brothers ("the NO
LLCs").

Plaintiff understood the project would be developed in

several phases, including an “Organizational Phase” to be completed
in fifteen (15) months at a cost not to exceed $500,000. Following
this “Organizational Phase,” actual construction was to begin
during

“Phase

I”

of

the

project

1

at

an

anticipated

cost

of

Due to the extensive alleged factual background, the Court
will reproduce here only those aspects that are more directly
related to the arguments in the present motions.
2

$1,300,000.

Plaintiff alleges that Bickford, Hindman, and Mason2

sought a total loan contribution from him of $900,000, representing
the full cost of the “Organizational Phase” and a portion of “Phase
I” of the project.
Plaintiff alleges that the contracting parties agreed that
Plaintiff's loan would be divided and separately allocated to the
NO LLCs.

Plaintiff claims that the NO LLCs were to transfer title

to the 21.41 acres of land (to be developed during Phase I) to
Defendant Chappapeela Development Corporation ("Chappapeela") upon
execution

of

Plaintiff's

loans.

Ostensibly,

Chappapeela

was

established as a corporate vehicle facilitating development of the
project.
Plaintiff also alleges that in 2010 Defendants decided to move
the project to land other than the 21.41 acres on which he had a
multiple indebtedness mortgage with Chappapeela, thus undermining
his security interest in the loans he had made.

He further

contends that he has a security agreement with Chappapeela in "all
general

intangibles

of

the

project,"

including

options

that

Defendants allegedly used to induce him to enter into these funding
agreements.

He states that these options, executed by GJFB, LLC

and GJBUF, LLC3 ("GJFB and GJBUF") in favor of the NO LLCs, would

2

Mason is no longer a party to this action.

(Rec. Doc.

17).
3

According to Plaintiff, the principal officer of GJFB and
GJBUF is the mother of the owners of the NO LLCs.
3

have allowed the project to expand onto adjacent land, but that the
NO LLCs have since entered a partial cancellation of these options
in favor of GJFB and GJBUF affecting a large portion of the land.
Plaintiff claims that as of November 2010 he had disbursed
$384,000.00 to the project and was repeatedly assured that the
project was progressing as planned.

However, Plaintiff alleges

that his review of the project's records in April 2012 revealed
misappropriation of the project's assets, including the funds he
had loaned for the project.

Plaintiff claims that Defendants'

actions therein directly contradicted prior verbal representations
made to him, as well as the formal documents and agreements he had
relied upon in contributing funds to the project.
On August 3, 2012, Plaintiff filed suit against Hindman,
Bickford, the NO LLCs, as well as various legal entities formed to
begin development of the property.

Plaintiff alleges causes of

action for breach of contract, unjust enrichment, and violations of
the Louisiana Unfair Trade Practices Act ("LUTPA").
On June 26, 2013, by amended complaint, Plaintiff joined GJFB
and GJBUF as additional defendants, alleging causes of action
against these parties for unjust enrichment4 and violations of
LUTPA

and

seeking

to

have

the

options

declared

as

binding.

Plaintiff also brought a revocatory action seeking rescission of

4

The Court has since dismissed this particular claim.
(Rec. Doc. 85).
4

the cancellation of options to purchase certain land adjacent to
the 21.41 acre plot.

Furthermore, Plaintiff filed a Notice of

Pendency of Action ("Lis Pendens") in Tangipahoa Parish covering
the land described in the options to purchase executed by GJFB and
GJBUF in favor of the NO LLCs.
In the instant motions, Plaintiff seeks summary judgment on
the enforcement of its promissory notes entered into with the NO
LLCs, arguing that there is no disputed issue of material fact as
to the amount due or the maturing of the notes.

Plaintiff also

seeks summary judgment on the counterclaims of Defendants NO LLCs,
Chappapeela, and French Creek, as well as those of GJFB and GJBUF.
II. APPLICABLE LAW
Summary judgment is appropriate only if, "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any," when viewed in the light most
favorable to the nonmovants, "show that there is no genuine issue
as to any material fact."5

A dispute about a material fact is

"genuine" if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.6

Once the moving party

has initially shown "that there is an absence of evidence to

5

TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th
Cir. 2002) (citing Anderson v. Liberty Lobby, Inc., 447 U.S. 242,
249-50 (1986)).
6

Id. (citing Anderson, 477 U.S. at 255).
5

support the nonmoving party's cause,"7 the nonmovants must come
forward with "specific facts" showing a genuine factual issue for
trial.8

Conclusory

allegations

and

denials,

speculation,

improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts
showing a genuine issue for trial.9
III. DISCUSSION
a. Motion for Partial Summary Judgment to Enforce Promissory Notes
(no. 100)
Plaintiff alleges that the principal balance on the promissory
notes executed between him and each of the NO LLCs on September 30,
2009 became due on September 30, 2014.

He claims that he has paid

out a total of $384,000, and that due to the terms of the
promissory notes, he is now owed this amount ($384,000 or $128,000
per LLC) plus 10% attorneys' fees ($38,400 or $12,800 per LLC).
In

response,

the

NO

LLCs

do

not

argue

the

amount

that

Plaintiff has contributed towards the project10 nor the terms of the

7

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

8

Id. (citing Fed. R. Civ. P 56(e); Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
9

Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (1993)).

10

"That's the amount [$384,000] that he [Plaintiff] had
funded on his commitment." (Rec. Doc. 100-4; Depo. of K.
Bickford, at 3).
6

promissory notes.11

Instead, they argue that Plaintiff cannot show

that the contributed funds, other than the initial $50,000, were
actually received by the NO LLCs.12

They do admit however that all

of the advances went to Chappapeela Development Corp.
Plaintiff replies by arguing that a denial of receipt of the
funds contradicts earlier testimony of Bickford.

Plaintiff also

points out that the Master Agreement specifies Chappapeela as the
entity to receive the funds for the project, and argues that the NO
LLCs cannot avoid their obligation now by saying that checks were
written to or at the direction of Chappapeela or its officer,
Bickford.13
The

parties

do

not

dispute

that

there

were

identical

promissory notes and "Master Agreements" between Plaintiff and each
of the NO LLCs.

(Rec. Doc. 100-4; Depo. of K. Bickford, at 5-6).

They do not dispute that each of the promissory notes was for

11

The maturity date was set five years from the execution of
the notes – which took place on September 30, 2009. (Rec. Doc.
100-3; Promissory Notes). The terms of that note also provide
that if legal proceedings have to be instituted to recover the
amount due on the note, the makers of the note (the NO LLCs) must
pay attorneys' fees set at 10% of the amount due. Id.
12

The NO LLCs do not dispute receiving this initial $50,000.
(Rec. Doc. 100-5, at 4; Master Agreement at Article 2.01(a))
("Owner hereby acknowledges receipt of Advances in the amount of
$16,666.67 from Burgers.").
13

Bickford serves as the sole officer of Chappapeela, while
the NO LLCs are Chappapeela's shareholders. (Rec. Doc. 32; Defs.
Answer, at 2 (admitting this constitution of Chappapeela's
structure)).
7

$166,666.67, or a total of $500,000.

Id. at 6.

They do not

dispute that these were the only agreements entered into between
Plaintiff and the NO LLCs.

Id.

They do not dispute that, other

than the earlier contributions of the Bickford family, Plaintiff
was the only party who contributed funds to this project.
3.

There is no dispute as to the maturity date.

Id. at

There is no

dispute that the Master Agreement, in the section titled "Loan
Advances," states the following:
Upon the terms and subject to the conditions
hereof,

Owner,

through

Chappapeela,

may

request an Advance in accordance with the
provisions of Article 6.
Burgers

in

writing

of

Until Owner notifies
the

withdrawal

of

Chappapeela's rights and powers, Burgers shall
be able to rely conclusively upon the right of
Chappapeela to make Advances on behalf of
Owner.

Owner agrees that only Chappapeela

shall be authorized to request an advance.
(Rec. Doc. 100-5, at 5; Master Agreement at Article 2.02(c)).
Defendants now ask the Court to find a disputed issue of fact
as to whether the NO LLCs can be held liable for the remaining
$334,000 (in addition to the stipulated attorneys' fees) due to the
fact that the checks were issued to Chappapeela Development Corp.

8

instead of to the NO LLCs.14

More specifically, counsel for the NO

LLCs argues in the opposition that "[s]ave for the initial $50,000
advanced

by

Burgers,

all

of

the

funds

went

to

Chappapeela

Development Corporation," and thus "Burgers has failed to offer
evidence to show that any of the entities against which he seeks
judgment have received the funds he advanced, his Motion for
Partial Summary Judgment against [the NO LLCs] must fail."

(Rec.

Doc. 107; Opp., at 4).
Via the explicit terms of their contract, Plaintiff was
entitled to rely on Chappapeela to make and request advances on
behalf of the NO LLCs.

The NO LLCs have presented no summary

judgment

dispute

evidence

to

this

understanding

of

the

straightforward terms of the promissory notes and Master Agreement.
A possible failure (i.e., what is proposed as a disputed issue of
fact) of Chappapeela to then distribute those advances to the NO
LLCs,

or

Plaintiff

otherwise

following

the

directions

of

Chappapeela or Bickford as to how to disburse the funds, does not
prejudice Plaintiff's rights under the promissory notes triggered
by his performance and the subsequent maturing of the notes.
Thus, the Court grants summary judgment in favor of the
14

The Court focuses on the $334,000 amount as the NO LLCs do
not dispute the initial $50,000 of Plaintiff's contribution. The
copies of the checks, amounting to $334,000 show that they were
issued to the following: one check to Elizabeth Title Agency, LLC
($100,000), two checks to Bickford (for $30,000 and $60,000), and
two checks to Chappapeela Development Corp. ($48,000 and
$96,000).
9

Plaintiff as to his claims against the NO LLCs regarding the
enforcement of the terms of the promissory notes.

Each NO LLC is

liable to Plaintiff for $128,000 in outstanding principal and
$12,800 in attorneys' fees.
b.

Counterclaims of the NO LLCs, Chappapeela, and French Creek

Development, LLC (no. 100)
Defendants NO LLCs, Chappapeela, and French Creek Development,
LLC

("French

Creek")15

have

filed

counterclaims

alleging

that

Plaintiff failed to "make certain advances on the loan" under the
"Loan Agreement and the Business Plan" regarding the development
project.

Defendants claim that this alleged breach of contract by

Plaintiff halted the project and that Plaintiff required the
development project "to expend loan proceeds for his personal
benefit." Defendants claim that this breach, as well as the nature
of the injuries, entitles them to monetary damages of $1,148,243,
prohibits Plaintiff from raising delay as a breach of contract
regarding the development project, and results in "a cancellation
of the note and mortgage held by [Plaintiff] and . . . a release of
all

further

obligations

to

[Plaintiff]."

(Rec.

Doc.

10;

Counterclaim of Chappapeela, French Creek, and NO LLCs at §§ 8, 1112).
In

the

present

motion

for

15

summary

judgment

on

these

Plaintiff alleges that Hindman serves as the sole officer
of French Creek.
10

counterclaims, Plaintiff raises four arguments.

First, Plaintiff

argues that these counterclaims are little more than claims for
compensation or "set-off," and that the NO LLCs explicitly waived
their right to bring such claims in the promissory notes.

Second,

Plaintiff argues that even if the NO LLCs did not waive these
claims, the agreements did not obligate him to provide the full
$166,666.67 to each NO LLC (or $500,000 total) but "only obligated
[P]laintiff to make advances to the defendants 'in an aggregate
principal amount outstanding not to exceed' the sum of $166,666.67
each (or $500,000 total)" (emphasis added).

Third, Plaintiff

argues that the "Default" section of the agreement does not include
a failure to contribute less than the full amount as a condition
that would trigger default.
Chappapeela

nor

French

Fourth, Plaintiff argues that neither

Creek

have

standing

to

bring

these

counterclaims based on breach of contract as there was no privity
of contract between Plaintiff and either of these parties as to the
loans.
In opposing the motion on these counterclaims, Defendants
respond

only

to

the

first

of

these

arguments.

As

to

the

substantive law on this issue, Defendants argue that "compensation"
and "set-off" are legally-defined terms in Louisiana, and that
these claims are not "judgments that are 'liquidated and presently
due,'" and thus "[t]here is nothing to 'setoff.'"
contend

from

a

policy

perspective

11

that

Defendants also

upholding

Plaintiff's

argument would be "tantamount to a waiver of every conceivable
counterclaim that could be asserted by an obligor under the note."
Compensation takes place by operation of law when two persons
owe to each other sums of money or quantities of fungible things
identical in kind, and these sums or quantities are liquidated and
presently due.

LA. C.C.

ART.

1893.

Compensation extinguishes both

obligations to the extent of the lesser amount.

Id.

Compensation

may be renounced prospectively by agreement of the parties, and
thus an agreement to do so as a condition to a loan would not be an
affront to public policy.
(2014).

5 LA. CIV. L. TREATISE, LAW

OF

OBLIGS. § 19.3

The NO LLCs have done exactly this where each entered a

provision in its respective promissory note stating, "The maker
hereof agrees that any and all obligations under this note shall
not

be

subject

to

any

claims

of

compensation

or

set-off

whatsoever." (Rec. Doc. 100-3; Prom. Note). Plaintiff argues that
this language precludes all counterclaims of Defendants.
The words of the contract here are not clear in intended scope
to the degree that Plaintiff attempts to stretch them.16
the

existence

of

the

possibility

of

prospectively

Despite

renouncing

compensation in Louisiana law, this Court has been unable to find
any case, nor has Plaintiff presented this Court with any case,

16

"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." LA. C.C. ART. 2046.
12

interpreting such a situation under Louisiana law.17

Regardless,

the application of the contractual provision at issue would need
little explication if this was a routine situation of, e.g., a
plaintiff claiming to be owed on a promissory note and a defendant
arguing that the plaintiff's debt to him in another transaction
should extinguish his obligation to the plaintiff to the extent of
the lesser amount.

C.f. In re MMR Holding Corp., 199 B.R. 611

(M.D. La. Aug. 23, 1996) ("Newberg contends that it is legally
entitled to setoff moneys it advanced to MMR2 . . . in connection
with a construction project in Lorton, Virginia.").

The claims in

this case are not so simple, nor can the use of "whatsoever" in the
NO

LLCs'

renunciation

of

compensation

17

be

construed

as

an

Nor has Plaintiff presented any case dealing with a
comparable scenario under any other state's law. The two cases
cited by Plaintiff, LaSalle Bank Natl. Assoc. v. Sleutel, 289
F.3d 837 (5th Cir. 2002) and Haggard v. Bank of Ozarks, Inc., 668
F.3d 196 (5th Cir. 2012), both dealt with a situation in which a
guarantor was seeking to offset the amount owed under a
deficiency judgment by the difference between the fair market
appraisal and the amount paid in foreclosure for the subject
property pursuant to the operation of a specific provision of the
Texas Property Code. The significance of the distinctions in
these cases in both facts and law from the present case renders
them an unsuitable guide as to the present provision's
application to the counterclaims of Defendants. Although
apparently not relevant in those cases, the Court does note that
the contractual provisions in those cases explicitly waived not
only the affirmative defense of set-off, but also used expansive
language that the guarantor was waiving "all rights and remedies
. . ., including, without limitation: . . . (III) any defense,
right of offset, or other claim which Guarantor may have against
Borrower or which Borrower may have against Lender" (Sleutel) or
"any defenses, set-offs or counterclaims which may be available
to Borrower or any other person or entity" (Haggard). LaSalle
Bank Natl. Assoc., 289 F.3d at 840; Haggard, 668 F.3d at 202.
13

unambiguous bar to all possible counterclaims where the parties
could have used more expansive language should they have intended
the provision to be clear and explicit as to such a broad scope.
Thus, the Court at this point finds the evidence ambiguous
as to how this provision is intended to extend to claims for
damages

based

on

breach

of

contract

that

exceed

what

would

otherwise be subject to compensation, the claims of nullification
of further obligations based on breach, or the barring of certain
claims by Plaintiff (e.g., raising delay as a default).

Lacrouts

v. Succession of Longo, 923 So.2d 717, 719 (La. App. 1 Cir. 2005)
("Summary judgment is rarely appropriate where a question remains
as to the meaning of or intent behind certain provisions of a
contract.") (citations omitted). Furthermore, the parties have not
briefed how this provision does or does not apply to these claims
except in the most general sense.
With that being said, the Court does grant this motion insofar
as Defendants attempt to bring a counterclaim to extinguish any
obligation owed to Plaintiff on amounts which Plaintiff already
advanced to the NO LLCs and which came due on September 30, 2014.
Plaintiff

pointed

to

the

straightforward

provision

of

the

promissory note that "all outstanding principal shall become due
and payable on the fifth (5th) anniversary of the date hereof."
The note was executed on September 30, 2009.

Defendants have

pointed to no provision of any contract to rebut a straightforward

14

reading of this provision, and their one objection raised as to the
duty

to

pay

on

the

outstanding

principal

is

unavailing,

as

addressed above.
Plaintiff's second argument is that the obligation was not to
provide $166,666.67 to each LLC, but rather to provide some amount
not to exceed that amount.

See (Rec. Doc. 100-5, at 5; Master

Agreement at Article 2.02(a)) ("Burgers hereby agrees to make
Advances to Owners during the Advance Period in an aggregate
principal amount outstanding not to exceed the sum of [$166,666.67]
(the 'Organizational Phase Loan') . . . .).

In other words,

Plaintiff argues that providing less than that amount does not
evidence

a

failure

by

him

to

perform

under

the

applicable

agreement. While Plaintiff has faithfully repeated the language of
the Master Agreements, the language of the Master Agreements also
appears to provide that the actual amount contributed by Plaintiff
to each NO LLC (up to the $166,666.67 amount) is determined by the
properly-made

advance

requests

of

the

NO

LLCs

–

unless

the

agreements have otherwise been terminated, such as by default.
(Rec. Doc. 100-5, at 5; Master Agreement at Article 2.02(c)) ("Upon
the terms and subject to the conditions hereof, Owner, through
Chappapeela,

may

request

an

provisions of Article 6.").

advance

in

accordance

with

the

As the default issue sits at the

center of significant factual disputes regarding the actions of the
parties, the Court goes no further in examining that issue.

15

As to

Plaintiff's
provision

third

that

obligation."

argument,

default

can

the

Court

arise

notes

from

"any

Id. at 9; Art. 7.01(e).

only

the

default

broad

of

any

This catch-all phrase

obviates Plaintiff's observation that the "Default" section of the
contract

does

not

list

his

failure

to

contribute

the

full

$166,666.67 toward each party as a default-causing event.
Finally, Plaintiff shows that Defendants as counterclaimants
have failed to present an issue of fact as to any obligations
undertaken

to

Chappapeela

or

French

Creek,

or

those

counterclaimants' privity to any such obligations by any other
means.

Chappapeela

and

French

Creek

did

not

present

any

documentation to the contrary (nor even briefed this issue).
Thus, Plaintiff's motion for summary judgment is granted to
the extent that the breach of contract counterclaims of Chappapeela
and French Creek premised on the promissory notes or Master
Agreement are dismissed. It is also granted to the extent that the
NO LLCs seek to extinguish any obligation to Plaintiff regarding
the funds that Plaintiff has already contributed under the terms of
the promissory notes and Master Agreement.

It is denied in all

other respects.
c.

Counterclaims of GJFB and GJBUF regarding the Notice of Lis

Pendens (no. 101)
Finally, Plaintiff filed a motion for summary judgment seeking
to dismiss the counterclaims of Defendants GJFB and GJBUF regarding
16

the notice of lis pendens filed by Plaintiff.

GJFB and GJBUF

allege in their counterclaim that Plaintiff wrongfully filed the
notice of lis pendens as to land other than the 21.41 acres
initially targeted for development18 and that they have sustained
damages as a result.
Louisiana Code of Civil Procedure Article 3751 states the
following:
The pendency of an action or proceeding in any court,
state or federal, in this state affecting the title to,
or

asserting

a

mortgage

or

privilege

on,

immovable

property does not constitute notice to a third person not
a party thereto unless a notice of the pendency of the
action or proceeding is made, and filed or recorded, as
required by Article 3752.
LA. C.C.P.

ART.

3751.

"The purpose of a notice of lis pendens is to give effective
notice to third persons of the pendency of litigation affecting
title to real property."

United States v. Jefferson, 632 F. Supp.

2d

2009)

608,

614

(E.D.

La.

(quoting

Whitney

Natl.

Bank

v.

McCrossen, 635 So.2d 401, 403 (La. App. 4 Cir. 1994)). "The notice
of lis pendens is not concerned with the merits of the litigation
which prompted its recordation."

Whitney Natl. Bank, 635 So.2d at

403 (citing Dane v. Doucet Bros. Const. Co., Inc., 396 So.2d 418,
18

See "Background," supra.
17

420 (La. Ct. App. 1981)).
The issue before the Court is if there is a disputed issue of
material fact as to whether Plaintiff's suit "affects title" of the
property described in the notice of lis pendens within the meaning
of Article 3751.

GJFB and GJBUF argue that Plaintiff improperly

relies on "dicta" from an earlier opinion of this Court in which it
addressed the motion for summary judgment brought by GJFB and GJBUF
on, among other things, their claims regarding the notice of lis
pendens.

The Court, in denying summary judgment, stated that it

"finds that [Plaintiff's suit 'affects title' to the 704 acres
within the meaning of Article 3751]." Burgers v. Bickford, no. 122009, 2014 WL 4186757, at *5 (E.D. La. Aug. 22, 2014).

GJFB and

GJBUF argue that whether the litigation affects title to the
entirety of the property described in the notice of lis pendens is
an issue of fact that should be resolved at trial on the merits.
The Court does not need to rely on language in that previous
opinion in today's decision.

The factual inquiry of whether

litigation affects title as to certain property – whether a filing
of a notice of lis pendens is proper at the outset of litigation –
requires only comparing the allegations in the lawsuit and the
corresponding property descriptions with the property description
in the notice of lis pendens.
First, there is no dispute that Plaintiff's revocatory action
and other claims include a request to have the "original options to

18

purchase" recognized as legal and binding and as part of his
alleged "first lien mortgage and security agreement." (Rec. Doc.
31; Pl's. Amend. Comp., at §§ 66(g), 79, 80).

There is also no

disputed issue of material fact that the property descriptions
referenced in those options and in the notice of lis pendens are
the same.

Compare (Rec. Doc. 101-5; Defs. Options w/ Prop.

Descrip.) with (Rec. Doc. 111-4; Notice of Lis Pendens w/ Prop.
Descrip.).19
Second, as to the legal inquiry of whether a claim falls under
the domain of Article 3751, litigation concerning options on
immovable property affects the title of that immovable property.
For example, the recordation of such an option makes it effective
against third persons as to the immovable property at issue.
C.C.

ART.

L A.

2629; see also Ducote v. McCrossen, 675 So.2d 817, 818-19

(La. App. 4 Cir. 1996) (finding that a suit seeking cancellation of
an assignable lease of immovable property affects title of that
property within the meaning of Article 3751 for similar reasons).
Plaintiff's claims thus affect title to the property described in
the notice of lis pendens, making the filing of the notice of lis
19

The Court notes that GFJB and GJBUF have submitted as a
disputed fact "[w]hether the 'options to purchase' between
Defendants NOKWB, LLC, NOCAB, LLC[,] NODAB, LLC, and Defendants
GJFB, LLC and GJBUF, LLC applied to land outside of the scope of
or adjacent to Phase 1 or whether it only applied to Phase 1."
(Rec. Doc. 108-2; Defs. Stmt. of Disputed / Contested Facts, at
§6). This sole, bare assertion, in the face of movant's
documentation of the specific property descriptions, is not
sufficient to show a genuine issue for trial.
19

pendens proper.

The clear language of this article requires no

more, and GJFB and GJBUF have cited no authority to the contrary.20
Thus, the Court grants Plaintiff's motion for summary judgment
dismissing the counterclaims brought by GJFB and GJBUF regarding
the alleged wrongful filing of the notice of lis pendens and
subsequent damages.
d.

Plaintiff's Claims against the NO LLCs, Chappapeela, French

Creek, Bickford and Hindman for Unjust Enrichment
On August 22, 2014, this Court granted summary judgment for
GJFB and GJBUF on Plaintiff's claims of unjust enrichment. Burgers
v. Bickford, no. 12-2009, 2014 WL 4186757, at *3 (E.D. La. Aug. 22,
2014).

The Court did so on the purely legal basis that this remedy

is "subsidiary and shall not be available if the law provides
another remedy for the impoverishment . . . ."

LA. C.C.

ART.

2298.

As claims under LUTPA relating to the same incidents against GJFB
and GJBUF were available to Plaintiff, the Court found that other
remedies at law were available.

Burgers, 2014 WL 4186757, at *3.

The same is true here. Plaintiff has other remedies available
for the impoverishment suffered.

Thus, the claim of unjust

enrichment against Defendants must be dismissed.

LA. C.C.

ART.

2298; Walters v. MedSouth Record Mgmt., LLC, 38 So.3d 241, 242 (La.
20

The Court's opinion today says nothing as to the
Plaintiff's claims concerning the property, nor does it
way prejudice the ability of GJFB and GJBUF to have the
lis pendens removed if the requirements of Article 3753
fulfilled.
20

merits of
in any
notice of
are later

2010) ("Having pled a delictual action, we find plaintiff is
precluded from seeking to recover under unjust enrichment.");
Westbrook v. Pike Elec., LLC, 799 F. Supp. 2d 665, 672 (E.D. La.
June 30, 2011) ("Thus, considering plaintiff has alleged causes of
action based on breach of contract, breach of implied duty of good
faith and fair dealing and a violation of the Louisiana Unfair
Trade Practices Act, a claim for unjust enrichment cannot lie and
must be dismissed.").
IV. CONCLUSION
In summary, the following claims remain for trial:
1.

Plaintiff's claims against the NO LLCs, Chappapeela, French
Creek, Bickford and Hindman for breach of contract;

2.

Plaintiff's claims against the NO LLCs, Chappapeela, French
Creek, Bickford, Hindman, GJFB, and GJBUF for fraudulent
inducement;

3.

Plaintiff's claims against the NO LLCs, Chappapeela, French
Creek, Bickford, Hindman, GJFB, and GJBUF for violations of
LUTPA;

4.

Plaintiff's claims against the NO LLCs and GJFB and GJBUF to
revoke the partial cancellation of the options and to have the
options recognized as binding;

5.

Plaintiff's

claims

to

have

his

mortgage

and

security

agreements recognized as valid as to all general tangibles and
intangibles of the project;

21

6.

The claims of the NO LLCs, French Creek, and Chappapeela
against Plaintiff for breach of contract.21
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Partial Summary Judgment to

Enforce Promissory Notes and for Summary Judgment on Defendants'
Counterclaims (Rec. Doc. 100) is GRANTED IN PART
PART.

and DENIED IN

It is GRANTED regarding the enforcement of the terms of the

promissory notes; each NO LLC is liable to Plaintiff for $128,000
in outstanding principal and $12,800 in attorneys' fees.

It is

GRANTED to the extent that the breach of contract counterclaims of
Chappapeela and French Creek premised on the promissory notes or
Master Agreement and any counterclaims brought by the NO LLCs
attempting to extinguish their obligations to Plaintiff regarding
the funds that Plaintiff has already contributed under the terms of
the promissory notes and Master Agreement are DISMISSED.

It is

DENIED in all other respects.
IT IS FURTHER ORDERED that the Motion for Summary Judgment on
Counterclaims of Defendants GJFB, LLC and GJBUF, LLC (Rec. Doc.

21

Any such claims of Chappapeela or French Creek are
preserved for trial only to the extent that they do not rely on
the promissory notes or Master Agreement.
The third party complaint filed by GJFB and GJBUF seeking a
writ of mandamus to have the Clerk of Court of Tangipahoa Parish
remove the notice of lis pendens is not included on this list of
claims left for trial as the cancellation of such a notice
becomes available upon judgment in the underlying action. LA.
C.C.P. ART. 3753.
22

101) is GRANTED.

The counterclaims brought by GJFB and GJBUF

regarding the alleged wrongful filing of the notice of lis pendens
and subsequent damages are DISMISSED.
April 15, 2015
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

23