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

Filing 92

ORDER AND REASONS granting 89 Motion for Summary Judgment Plaintiffs' Remaining Claims. Plaintiffs' remaining claims against Defendants are DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo. (NEF: JVM) (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 Defendants’ Motion for Summary Judgment on
Plaintiffs’ Remaining Claims (Doc. 89). For the following reasons, the Motion
is GRANTED.
BACKGROUND
Defendants are Graham Packard, LLC (“Graham Packard”), Ice Ice
Living, LLC (“Ice Ice”), and their owners, Yogi Graham (“Graham”) and Daniel
Packard (“Packard”) (collectively “Defendants”). This matter arises out of an
agreement to purchase property in which Plaintiffs Chef Properties, LLC and
its owner Edward B. Mendy (“Mendy”) (collectively “Plaintiffs”) executed a
purchase agreement (“the Agreement”) to buy two properties from Defendants
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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 (Doc. 19), Second Amended Complaint
(Doc. 41), Third Supplemental Amended Complaint (Doc. 53), and Fourth
Amended Complaint (Doc. 66) (collectively “Amended Complaint”) set forth 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
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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 suit alleging sixteen claims. This Court has
dismissed all of Plaintiffs’ claims, save their claims for libel, slander, and
fraud. 1 In doing so, the Court held that Plaintiffs had not put forth any
evidence that Defendants interfered with their performance of the Agreement,
and their breach was therefore not justified.
Defendants now move for summary judgment on Plaintiffs’ remaining
claims. Plaintiffs have failed to respond to Defendants’ Motion. The Court may
not, however, simply grant the instant Motion as unopposed. The Fifth Circuit
approaches the automatic grant of dispositive motions with considerable
aversion. 2 Instead, the proper inquiry to an unopposed motion for summary
judgment is to determine whether the facts advanced in the motion and
supported by appropriate evidence make out a prima facie case that the
movant is entitled to judgment. 3
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 4 A genuine issue
See Docs. 65, 86.
See, e.g., Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc.,
702 F.3d 794, 806 (5th Cir. 2012); Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006) (per
curiam); John v. State of Louisiana (Bd. of Trs. for State Colls. and Univs.), 757 F.2d 698,
709 (5th Cir.1985).
3 See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006);
Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988).
4 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
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of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 5
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. 6 “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.” 7 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.” 8 “In response to a
properly supported motion for summary judgment, the non-movant 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 non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 9 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 10 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 11

LAW AND ANALYSIS
Defendants move for summary judgment on Plaintiffs’ remaining claims
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
7 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
8 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
9 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
10 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
11 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
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of fraud and defamation. This Court will consider each claim in turn.
A. Fraud
Under Louisiana law, fraud is defined as “a misrepresentation or a
suppression of the truth made with the intention either to obtain an unjust
advantage for one party or to cause a loss or inconvenience to the other.” 12 In
order to succeed on a fraud claim, Plaintiffs must show: “(1) a misstatement or
omission; (2) of material fact; (3) made with the intent to defraud; (4) on which
the plaintiff relied; and (5) which proximately caused the plaintiff’s injury.” 13
Plaintiffs’ Amended Complaint alleges that Defendants committed fraud when
they mislead Plaintiffs about their intention to allow additional time within
which to complete the inspection and tender the second deposit. Defendants
argue that Plaintiffs cannot present evidence to support this claim, and indeed,
they have not. There is no evidence in the record that Defendants made a
misrepresentation to Defendants regarding an addendum to the Agreement.
Even so, such reliance would not have been reasonable given that “an
extension of the time stipulated in a written promise or option to buy or sell
real estate must be in writing.” 14 Accordingly, Plaintiffs’ fraud claims are
dismissed.
B. Defamation
Defamation, often referred to as libel or slander, is a tort that involves
the “invasion of a person’s interest in his or her reputation and good name.” 15
In order to prove a claim of defamation, Plaintiffs must show: “(1) a false and
defamatory statement concerning another; (2) an unprivileged publication to a
third party; (3) fault (negligence or greater) on the part of the publisher; and
LA. CIV. CODE art. 1953
First Am. Bankcard, Inc. v. Smart Bus. Tech., Inc., 178 F. Supp. 3d 390, 401 (E.D.
La. 2016).
14 Di Cristina v. Weiser, 42 So. 2d 868, 871 (La. 1949).
15 Trentecosta v. Beck, 703 So. 2d 552, 559 (La. 1997) (internal quotations omitted).
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(4) resulting injury. Thus a plaintiff, in order to prevail in a defamation action,
must prove that the defendant, with actual malice or other fault, published a
false statement with defamatory words which caused plaintiff damages.” 16
Plaintiffs’ Amended Complaint alleges that Defendants defamed Plaintiffs
when they told third parties that the Agreement was invalid or breached or
that Plaintiffs had no right or desire to purchase the Subject Properties.
Plaintiffs allege that Defendants made defamatory statements “with the intent
of conveying the false and defamatory idea that [Plaintiffs were] propagating
a deliberate falsehood by asserting that [they] had an agreement with
[Defendants] for the purchase of the Properties.” 17
There is no evidence in the record of any specific, defamatory statements
made by Defendants regarding Plaintiffs or their purchase of the Subject
Properties. Defendants submit affidavits from Defendants Packard and
Graham, attesting that no such statements were made. In addition, this Court
has already held that Plaintiffs did indeed breach the Agreement by failing to
timely tender the second deposit. “Truth is an absolute defense to an action for
defamation.” 18 Accordingly, Defendants have made out a prima facie case that
they are entitled to judgment on Plaintiffs’ remaining claims.

Id.
Doc. 66, p. 31.
18 Bell v. Rogers, 698 So. 2d 749, 755 (La. App. 2 Cir. 1997).
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CONCLUSION
For the foregoing reasons, the Motion is GRANTED, and Plaintiffs’
remaining claims against Defendants are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana this 3rd day of April, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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