Tribute Real Estate, LLC v. United Artist Theatre Circuit, Inc, et al

Filing 56

RULING: Accordingly, Regals 40 motion for summary judgment is hereby DENIED. Tributes 44 motion for summary judgment is GRANTED and Regals counterclaim for breach of lease is DISMISSED. Tributes 52 motion for oral argument is DENIED.. Signed by Judge James J. Brady on 8/4/2011. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TRIBUTE REAL ESTATE, LLC
CIVIL ACTION
VERSUS
NO. 10-106-JJB
UNITED ARTIST THEATRE CIRCUIT, INC., ET AL.
RULING
This matter is before the court on a motion (doc. 40) for partial summary
judgment filed by defendant Regal Cinemas, Inc. (“Regal”), which plaintiff Tribute
Real Estate, LLC (“Tribute”) has opposed (doc. 51). This matter is also before the
court on a motion for summary judgment filed by Tribute (doc. 44), which Regal
has opposed (doc. 54). Tribute has requested oral argument (doc. 52) on Regal’s
motion; however, the court finds that oral argument is not necessary.
The underlying lawsuit in this matter arises from damage to property
owned by plaintiff Tribute and leased to defendant Regal.1 The damage was
allegedly caused by Hurricane Gustav and a March 2009 severe weather event.
Regal’s counterclaim alleges breach of the written lease agreement due to the
lessor’s failure to make repairs to the leased premises. In a previous ruling (doc.
39), this court dismissed the portion of Regal’s counterclaim alleging unjust
enrichment.

1

The property was initially leased to United Artist Theatre Circuit, Inc. Regal is the successor to United’s interest in
the lease.

1

Summary judgment is appropriate when the pleadings, answers to
interrogatories, admissions, depositions, and affidavits on file indicate there is no
genuine issue of material fact and that the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). When the burden at trial rests on the non-movant, the movant need only
demonstrate that the record lacks sufficient evidentiary support for the nonmovant’s case. See id. The movant may do so by showing that the evidence is
insufficient to prove the existence of one or more elements essential to the nonmovant’s case. Id.
Although the Court considers any disputed or unsettled facts in the light
most favorable to the non-movant, the non-movant may not rest merely on
allegations set forth in the pleadings. Instead, the non-movant must show that
there is a genuine issue for trial by presenting evidence of specific facts. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Conclusory
allegations and unsubstantiated assertions will not satisfy a non-movant’s
burden. See Grimes v. Tex. Dep’t of Mental Health, 102 F.3d 137, 139-40 (5th
Cir. 1996). If, once a non-movant has been given the opportunity to raise a
genuine factual issue, no reasonable juror could find for the non-movant,
summary judgment will be granted. See Celotex, 477 U.S. at 322; see also Fed.
R. Civ. P. 56(c).

2

Interpretation of an insurance contract presents a question of law and is
therefore an issue appropriate for determination by summary judgment. Martco
Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 878 (5th Cir. 2009).
In support of its breach of lease counterclaim, Regal alleges that Tribute
had the obligation as landlord to make necessary repairs to the lease premises
after a casualty event, that the building was damaged as a result of Hurricane
Gustav, that Tribute failed to make the necessary repairs to the building after
being informed of the damage, and that Regal had to pay to have the building
properly repaired when Tribute refused to do so.
The lease mandates in section 15(b) that Regal:
carry and maintain, at Tenant’s sole expense, business
interruption insurance . . . and insurance against perils
customarily included within all-risk and fire and extended
coverage on the Building and on Tenant’s trade fixtures,
equipment and other personal property on or about the
Premises, in an amount equal to the full replacement value of
the Building, Tenant’s trade fixtures, equipment and other
personal property on or about the premises at the time of loss.
The lease further provides for a release of all claims resulting from any
risks covered by insurance. Specifically, section 12 of the lease states, “Landlord
and Tenant hereby release one another from any and all claims caused by or
resulting from risks insured against under any insurance policies carried by the
parties and in force at the time of any such claims.”
The court agrees with Tribute that this language in section 12 clearly
indicates Regal has released any and all claims against Tribute for the covered
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risks, which form the basis of Regal’s breach of lease counterclaim. Section 12 of
the lease is free from any ambiguity and, under Louisiana law, must be
interpreted and enforced as written in furtherance of the parties’ mutual intent.
See La. Civ. Code arts. 2045, 2046. Releases contained in leases, such as here,
have been enforced by Louisiana courts. See Home Ins. Co. of Illinois v. Nat’l
Tea Co., 588 So.2d 361 (La. 1991). See also Resolution Trust Corp. v. GasperVirgillio, 27 F.3d 178, 180 (5th Cir. 1994); McAuslin v. Grinnell Corp., No. 97-803,
1999 WL 203279 (E.D. La. Apr. 8, 1999). Tribute has established that the
damages specified in Regal’s counterclaim are for covered risks for which Regal,
as required, had an insurance policy.
Regarding the issue of attorneys’ fees and costs, the court declines to
grant summary judgment on this issue. According to section 31 of the lease, the
“prevailing party shall be entitled to recover reasonable attorneys’ fees, injunction
bond premiums and costs” (doc. 40-2, pp. 5-6, no. 16). Neither party has yet
prevailed as this case has not been concluded. Even though Regal’s
counterclaim is being dismissed, Regal may or may not ultimately prevail on the
remaining issues.
Accordingly, Regal’s motion (doc. 40) for summary judgment is hereby
DENIED. Tribute’s motion (doc. 44) for summary judgment is GRANTED and

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Regal’s counterclaim for breach of lease is DISMISSED.2 Tribute’s motion (doc.
52) for oral argument is DENIED.
Signed in Baton Rouge, Louisiana, on August 4, 2011.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

2

Regal’s claim for attorneys’ fees and costs is reserved.

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