Chef Properties, LLC et al v. Graham Packard, LLC et al

Filing 65

ORDER AND REASONS granting in part 55 Motion to Dismiss. All of Plaintiffs' claims-save libel, slander, and fraud-are DISMISSED WITH PREJUDICE. Plaintiffs shall amend their Complaint within 20 days of this Order to the extent that they can remedy the deficiencies identified herein. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EDWARD B. MENDY and
CHEF PROPERTIES, LLC

CIVIL ACTION

VERSUS

NO: 16-7443

GRAHAM PACKARD, LLC,
ICE ICE LIVING, LLC,
YOGI GRAHAM, AND
DANIEL PACKARD

SECTION: “H”

ORDER AND REASONS
Before the Court is a Motion to Dismiss (Doc. 55) for failure to state a
claim upon which relief can be granted pursuant to Federal Rule of Civil
Procedure 12(b)(6). Defendants Graham Packard, LLC (“Graham Packard”),
Ice Ice Living, LLC (“Ice Ice”), and their owners, Yogi Graham (“Graham”) and
Daniel Packard (“Packard”) (collectively “Defendants”) filed this motion
seeking to dismiss the claims of Plaintiffs Chef Properties, LLC and its owner
Edward B. Mendy (“Mendy”) (collectively “Plaintiffs”) as set forth in Plaintiffs’
Amended Complaint (Doc. 19), Second Amended Complaint (Doc. 41), and
Third Supplemental Amended Complaint (Doc. 53) (collectively “Amended
Complaint”). For the following reasons, the Motion is GRANTED IN PART.

1

BACKGROUND
This matter arises out of an agreement to purchase property. On April
2, 2016, Plaintiffs executed a purchase agreement (“Agreement”) to buy two
properties from defendants Graham Packard and Ice Ice.

Under the

Agreement, Plaintiffs had two days from execution to deliver a $1,000 deposit
into an escrow account, and thirty days from execution to conduct any desired
due diligence, obtain financing, and submit an additional $9,000 deposit.
Plaintiffs’ Amended Complaint alleges the following facts. On April 2,
2016, when Mendy met with Packard to execute the Agreement, the two
discussed and agreed to change certain terms, namely, deferring the deadline
for the inspection and second deposit to sixty days.

Packard suggested

incorporating these changes into an addendum rather than marking up the
Agreement, and Mendy alleges that he executed the Agreement on the
understanding that an addendum would follow shortly thereafter.
For two weeks following that meeting, Packard repeatedly assured
Mendy that he was drafting the addendum. Subsequently, however, Packard
notified Mendy that Graham Packard had received interest from other
prospective buyers and wanted Mendy to “show proof of ability to close the sale
before [Defendants] would execute the addendum.”

Mendy supplied the

requested information, but Defendants failed to send any draft addendum and
instead Packard notified Mendy that Defendants would likely go with another
offer. On April 25, 2016, Mendy drafted an addendum and sent it to Packard,
but received no response.

Growing concerned, Mendy then attempted to

comply with the terms of the Agreement and set up an appointment for
inspection. Defendants failed to respond to Mendy’s requests to make the
properties available for inspection. Mendy did not hear from Packard until
May 3, 2016—one day after the thirty day deadline—when Packard informed
2

Mendy that Defendants would not sign the addendum and considered the
contract void because Mendy had failed to obtain an inspection and make the
second deposit of $9,000 by the thirty day deadline as set out in the Agreement.
Plaintiffs subsequently filed the Amended Complaint alleging sixteen
claims:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Claim One– Breach of Contract;
Claim Two– Breach of Contract as to Post-Termination Violations;
Claim Three– Inducing Breach of Contract;
Claim Four– Interference with Business Relations;
Claim Five – Intentional Interference with Contract;
Claim Six– Libel and Slander;
Claim Seven– Unfair Business Practices;
Claim Eight– Breach of Duty of Good Faith and Fair Dealing;
Claim Nine– Civil Conspiracy;
Claim Ten– Tortious Conduct;
Claim Eleven– Unjust Enrichment;
Claim Twelve– Justifiable (Detrimental) Reliance;
Claim Thirteen– Fraud;
Claim Fourteen– Mail and Wire Fraud;
Claim Fifteen– Punitive Damages; and
Claim Sixteen– Expenses of Litigation and Attorney’s Fees.

Defendants filed the instant Motion to Dismiss under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. They argue that
Plaintiffs’ claims cannot succeed because the addendum is unenforceable.
They also argue that under the terms of the Agreement Plaintiffs may seek
only specific performance or the return of the deposit. Because this Court
ultimately decides that Plaintiffs have failed to state a claim for breach of
contract, it need not address Defendants’ other arguments.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

3

enough facts “to state a claim to relief that is plausible on its face.” 1 A claim is
“plausible on its face” when the pleaded facts allow the court to “[d]raw the
reasonable inference that the defendant is liable for the misconduct alleged.” 2
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.” 3 The court need not, however,
accept as true legal conclusions couched as factual allegations. 4
To be legally sufficient, a complaint must establish more than a “sheer
possibility” that the plaintiff’s claims are true. 5 “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’ ”
will not suffice. 6

Rather, the complaint must contain enough factual

allegations to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiff’s claim. 7
LAW AND ANALYSIS
I.

Claims One and Two

Defendants argue that Plaintiffs’ claims for breach of contract fail
because the parties did not have a valid binding contract with addendum.
Defendants assert that the addendum that Plaintiffs allege was agreed upon
by the parties is not valid because it was never put into writing, and
Defendants therefore cannot have breached the Agreement. Plaintiff does not
address this argument, but rather, argues that the Amended Complaint
asserts a breach of contract whether or not the addendum is valid.
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 547 (2007)).
2 Id.
3 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir.2009).
4 Iqbal, 556 U.S. at 667.
5 Id.
6 Id. at 678 (quoting Twombly, 550 U.S. at 555).
7 Lormand, 565 F.3d at 255–57.
1

4

Under Louisiana law, a contract to sell immovable property must be in
writing and “must be made by authentic act or by act under private signature.” 8
Generally, “[t]estimonial or other evidence may not be admitted to negate or
vary the contents of an authentic act or an act under private signature.” 9
However, in the interest of justice, evidence “may be admitted to prove such
circumstances as a vice of consent or to prove that the written act was modified
by a subsequent and valid oral agreement.” 10 In addition, “[w]hen the law
requires a contract to be in written form, the contract may not be proved by
testimony or by presumption, unless the written instrument has been
destroyed, lost, or stolen.” 11 “It is . . . axiomatic that, with a few exceptions,
parol evidence may not be received to supplement any agreement concerning
the sale of an immovable. The designation of the sale should properly be based
exclusively on the written act of sale.” 12 The Louisiana Supreme Court has
stated that “an extension of the time stipulated in a written promise or option
to buy or sell real estate must be in writing.” 13 Accordingly, Defendants are
correct that the addendum outlined in the Amended Complaint is
unenforceable and did not vary the contract signed by the parties.
Plaintiffs argue, however, that Defendants breached the Agreement
whether or not the addendum is enforceable. Plaintiffs allege that while they
fully complied with the terms of the contract, Defendants made clear their
intentions to repudiate the contract and award the sale to another party. “The
doctrine of anticipatory breach of contract applies when an obligor announces
he will not perform an obligation which is due sometime in the future. The

La. Civ. Code art. 1839.
La. Civ. Code art. 1848.
10 Id.
11 La. Civ. Code Ann. art. 1832.
12 Strange v. Kennard, 763 So. 2d 710, 712 (La. App. 1 Cir. 2000).
13 Di Cristina v. Weiser, 42 So. 2d 868, 871 (La. 1949).
8
9

5

obligee need not wait until the obligor fails to perform for the contract to be
considered in breach.” 14 This Court, however, is not convinced that Plaintiffs
have alleged sufficient facts to support an anticipatory breach of contract
claim. The Amended Complaint alleges that Defendants alerted Plaintiffs that
were entertaining other offers on the property during the period within which
Plaintiffs were supposed to perform their due diligence. 15 Plaintiffs allege that
they became concerned about Defendants’ lack of responsiveness and
requested that the property be made available for inspection. Plaintiffs allege
that Defendants did not respond to their request and did not make the property
available for inspection. Plaintiffs do not allege, however, when the request
was made or whether reasonable terms were sought.

Pursuant to the

Agreement, Plaintiff had until May 2, 2016 to complete due diligence, obtain
financing, and tender the remaining $9,000 deposit.

From the Amended

Complaint, this Court can infer that the request for inspection occurred
sometime after April 25, 2016. It is not clear, however, whether the request
occurred within the 30 days provided by the Agreement. In short, Plaintiffs
have not shown that they fully complied with the requirements of the contract
prior to Defendants’ repudiation or refusal to make the property available for
inspection. Accordingly, Plaintiffs’ breach of contract claims are dismissed,
and Plaintiffs are given leave to amend their Amended Complaint to the extent
that they can remedy this pleading deficiency.
II.

Claims Three through Sixteen

Defendants next argue that Plaintiffs’ remaining claims fail because
they are premised on the existence of a valid and binding contract. Defendants
Fertel v. Brooks, 832 So. 2d 297, 305 (La. App. 4 Cir. 2002); see Marek v. McHardy,
101 So. 2d 689, 695 (1958).
15 Such a statement does not rise to the level of repudiation.
14

6

allege that because Plaintiffs have not alleged a breach of contract, their
remaining claims too cannot stand.

This Court agrees that, save a few,

Plaintiffs’ claims are premised on a breach of contract. Because Plaintiffs have
not sufficiently alleged a breach of contract, those claims too fail. Plaintiffs’
claims for libel, slander, and , however, are based on other grounds and cannot
be dismissed solely for Plaintiffs’ failure to plead a breach of contract.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss is GRANTED IN
PART.

All of Plaintiffs’ claims—save libel, slander, and fraud—are

DISMISSED WITH PREJUDICE. Plaintiffs shall amend their Complaint
within 20 days of this Order to the extent that they can remedy the deficiencies
identified herein.
New Orleans, Louisiana this 8th day of March, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

7