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

Filing 86

ORDER AND REASONS granting 73 Motion for Partial Summary Judgment. All of Plaintiffs' claimssave libel, slander, and fraudare DISMISSED WITH PREJUDICE. 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 Defendant’s Motion for Partial Summary Judgment
(Doc. 73). For the following reasons, the motion is GRANTED.
BACKGROUND
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
summary judgment on all claims of Plaintiffs Chef Properties, LLC and its
owner Edward B. Mendy (“Mendy”) (collectively “Plaintiffs”) as set forth in
Plaintiffs’ Fourth Amended Complaint (Doc. 66), other than claims for fraud,
libel, or slander.
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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, 1 Second Amended Complaint, 2 and
Third Supplemental Amended Complaint 3 allege 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, extending 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 executed the Agreement on the understanding that an
addendum would follow shortly thereafter.
Subsequently, however, Packard notified Mendy that Graham Packard
had received interest from other prospective buyers and would likely go with
another offer. On April 25, 2016, Mendy drafted an addendum and sent it to
Packard, but received no response. 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 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 allege claims based
Doc. 19.
Doc. 41.
3 Doc. 53.
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on breach of contract, fraud, and defamation.
On May 23, 2017, the Court dismissed all of Plaintiffs’ claims that were
predicated on Defendants’ breach of contract. 4 Plaintiffs’ claims for fraud, libel,
and slander remain. The Court held that the Agreement was a valid and
binding contract, but that any proposed addendum was not enforceable
because it was not in writing. According to the terms of the Agreement,
Plaintiffs had until May 2, 2016 to pay the remaining $9,000 deposit. Plaintiffs’
failure to tender the additional money by May 2nd constituted a breach,
releasing Defendants from the obligation to sell the property to Plaintiffs.
In opposition to the motion to dismiss, Plaintiffs argued that Defendants
refused to make the property available for inspection, thereby breaching the
Agreement before May 2nd and excusing Plaintiffs’ failure to make the
additional deposit. The Court held that while such interference could excuse
Plaintiffs’ breach, Plaintiffs had not sufficiently plead either that Plaintiffs
were ready to perform on or before May 2, 2016, or that Defendants prevented
an actual inspection before then. The Court granted leave to amend Plaintiffs’
Complaint to correct the deficiency.
Plaintiffs filed a Fourth Amended Complaint, alleging that Plaintiffs
tried to coordinate inspection of the properties between April 16 and May 2,
2016, and that Defendants refused to respond to those requests. 5
Defendants now move for partial summary judgment. Defendants argue
that Plaintiffs neither requested inspection nor tendered the additional deposit
before May 2, 2016, and that Plaintiffs have therefore failed to correct the
previously fatal deficiencies in their Complaint. 6

Doc. 65.
Doc. 66 at 15.
6 Doc. 73-1 at 6.
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LEGAL STANDARD
Summary judgment is appropriate if “the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations. . . , admissions, interrogatory answers, or other materials” “shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” 7 A genuine issue of fact exists only “if
the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” 8
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 9 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 10 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 11 “In response to a
properly supported motion for summary judgment, the nonmovant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the nonmovant on all issues as to which the
nonmovant would bear the burden of proof at trial.” 12 The Court does “not . . .
in the absence of any proof, assume that the nonmoving party could or would

Fed. R. Civ. P. 56 (2012).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
9 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
10 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
11 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
12 Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301
(5th Cir. 2004) (internal citations omitted).
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prove the necessary facts.” 13 Additionally, “[t]he mere argued existence of a
factual dispute will not defeat an otherwise properly supported motion.” 14
LAW AND ANALYSIS
The sole issue remaining with respect to Plaintiffs’ contract claims is
whether Defendants prevented Plaintiffs from conducting due diligence by
failing to make the properties available for inspection before May 2, 2016. The
purchase agreement obligated Plaintiffs to conduct whatever due diligence
Plaintiffs desired, obtain financing, and submit an additional $9,000 nonrefundable deposit by May 2, 2016. 15 The Agreement correspondingly obligated
Defendants to allow Plaintiff to inspect the properties as a part of that
diligence. The parties do not dispute that Plaintiffs failed to tender the $9,000
deposit by May 2nd. By failing to submit the deposit, Plaintiffs breached the
Agreement. However, as the Court reasoned when dismissing Plaintiffs’
claims, any interference with Plaintiffs’ inspection of the properties before May
2nd could represent a breach by Defendants that excuses Plaintiffs’ failure to
submit the additional deposit.
Plaintiffs bear the burden to show that their breach of contract was
justified by Defendants’ interference, and at the summary judgment stage,
Plaintiffs therefore must point to specific evidence in the record sufficient to
sustain such a finding. 16 Unsubstantiated assertions are not sufficient to meet
that burden. 17 Here, Plaintiffs do not point to any evidence to support the
assertion in the Fourth Amended Complaint that Defendants precluded

Badon v. R J R Nabisco, Inc., 224 F.3d 382, 393–94 (5th Cir. 2000) (quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
14 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
15 Doc. 73-1 at 8.
16 See Johnson, 379 F.3d at 301.
17 Little, 37 F.3d at 1075.
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inspection prior to May 2, 2016. Plaintiffs have produced no evidence, for
example, of any communication before May 2nd in which Plaintiffs attempt to
schedule an inspection with Defendants or in which Defendants deny Plaintiffs
access to the properties.
There is a dispute of fact as to when Plaintiffs first contacted an
inspection firm regarding the properties subject to the Agreement, but that
fact is immaterial. 18 “Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary
judgment.” 19 When Plaintiffs contacted property inspectors is not relevant
unless Plaintiffs can also show that Defendants interfered with Plaintiffs’
attempts to inspect the property. Because Plaintiffs do not point to any
evidence of interference, this dispute is not material and does not prevent
summary judgement.
Furthermore, although the lack of evidence of interference is alone fatal
to Plaintiffs’ contract claims, the evidence Plaintiffs do submit tends to
establish that an inspection was not even scheduled, let alone interfered with,
before May 2nd. According to Plaintiffs, the inspectors required two weeks of
lead time to schedule an inspection. 20 Plaintiffs’ emails show that as of April
25, 2016, only one week from May 2, Plaintiffs were still negotiating with the
inspection firm over the cost of the inspections. 21
Plaintiffs have not produced any evidence that, even when construed in
the light most favorable to Plaintiffs, supports the claim that Defendants
either prevented Plaintiffs from performing Plaintiffs’ obligation to tender the

Compare Doc. 73-1 at 12, an affidavit stating that the inspection firm did not hear
from Plaintiffs about the relevant properties until May 13, 2016, with Doc. 80-16 at 4–5, an
email from the inspection firm to Plaintiffs regarding the properties on April 20.
19 Anderson, 477 U.S. at 248.
20 Doc. 80-14 at 4, 12.
21 See Doc. 80-17 at 2.
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$9,000 deposit or breached Defendants’ obligation to make the properties
available for inspection. Plaintiffs’ excuses for the failure to tender the deposit,
while interesting, have no bearing on the terms of the contract.
CONCLUSION
For the foregoing reasons, the Motion for Partial Summary Judgment is
GRANTED. All of Plaintiffs’ claims—save libel, slander, and fraud—are
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 18th day of August, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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