Brimstone Rentals Inc v. Kronos Louisiana Inc

Filing 26

MEMORANDUM RULING re 18 MOTION for Summary Judgment filed by Kronos Louisiana Inc. Signed by Judge James D Cain, Jr on 3/27/2024. (crt,Stewart, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
BRIMSTONE RENTALS, INC.

CASE NO. 2:22-CV-02386

VERSUS

JUDGE JAMES D. CAIN, JR.

KRONOS LOUISIANA, INC.

MAGISTRATE JUDGE LEBLANC

MEMORANDUM RULING
Before the Court is a Motion for Summary Judgment (Doc. 18) filed by the
Defendant, Kronos Louisiana, Incorporated (“Kronos”). Plaintiff, Brimstone Rentals,
Incorporated (“Brimstone”) opposes the motion. Doc. 20.
BACKGROUND INFORMATION
This case involves an alleged breach of a commercial lease. Brimstone and Kronos
have a long history. Beginning in 1993, Brimstone began leasing its immovable property
to Kronos. Doc. 20-2 at 1. The Brimstone property occupies approximately six acres of
land and consists of five buildings with approximately 100,000 square feet of
improvements. Id. The five buildings were constructed at various times for use by Kronos.
Id. Kronos leased the property continuously until it vacated the property on December 31,
2021. Id.
Beginning no later than 2000, Kronos began using Brimstone’s warehouse to
repackage titanium dioxide pigments. Doc. 18-2 at ¶¶ 1, 3. Titanium dioxide is a fine,
white, nonhazardous powder. Id. at ¶ 2. It is used to add whiteness, brightness, and opacity
to a variety of industrial and consumer products. Brimstone was aware that the leased

premises was being used for this purpose. Id. at ¶ 3. Kronos repackaged 1-ton “super
sacks” of titanium dioxide, which were manufactured off-site, into fifty and fifty-five
pound bags. Id. at ¶ 4.
On May 30, 2002, the parties executed a new lease (“2002 lease”) of the property
for a five-year term with a monthly rent of $14,900. Id. at ¶ 5; Doc. 18-6. As part of the
lease, Brimstone agreed to construct a 64’ x 300’ warehouse. Doc. 20-2 at 2; Doc. 18-6 at
1. That same year, Brimstone constructed an additional 6000 sq. ft. building (the “bagging
unit”) at Kronos’s request for use in the bagging of titanium dioxide. Doc. 20-2 at 2. The
2002 lease contained a provision stating: “Leased premises shall be returned to its original
condition at the expense of the Lessee, with exception of normal wear and tear.” Doc. 182 at ¶ 6. Doc. 18-6 at 4.
Upon expiration of the 2002 lease, the parties executed a new lease at the same rate
for a term of five years, beginning on December 1, 2007 (“2007 lease”). Doc. 18-2 at ¶ 7.
The 2007 lease contained identical language concerning the return of property in original
condition aside from normal wear and tear. Doc. 18-7 at 3. When the 2007 lease expired,
the parties executed a new five-year lease at the same rate, beginning on December 1, 2012
(“2012 lease”). Doc. 18-2 at ¶ 9; Doc. 16-1. Again, the 2012 lease contained the same
clause regarding normal wear and tear. Doc. 18-2 at ¶ 10; Doc. 16-1 at 4. Five years later
the parties executed their last lease agreement, beginning on December 1, 2017 (“2017
lease”). Doc. 18-2 at ¶ 11; Doc. 1-1. Once again, the lease contained the same clause
regarding normal wear and tear. Doc. 18-2 at ¶ 12; Doc. 1-1.

Page 2 of 12

In May 2021, Brimstone and Kronos amended the 2017 lease to shorten the term
and set an expiration date of December 31, 2021. Doc. 18-2 at ¶ 13; Doc. 18-8. The
remainder of the provisions of the 2017 lease remained in full force and effect. Doc. 18-8.
On December 31, 2021, Kronos vacated the property at the expiration of the lease. Doc.
20-2 at 2. On February 9, 2022, Brimstone demanded that Kronos clean up the residual
titanium dioxide dust that had accumulated on the walls and ceilings of the facility. Doc.
18-9. Kronos failed to undertake any cleanup of the property. Doc. 20-2 at 2. Brimstone
hired Pro Waste to clean the property, which required the use of vacuum trucks and disposal
at a permitted solid waste facility at an expense of $80,690.94. Id. at 3.
Brimstone filed suit against Kronos for breach of the 2017 lease and 2012 lease.
Doc. 1-1; Doc. 16. Brimstone alleges that it was unable to reoffer the property for lease
until the cleanup was completed on June 10, 2022. Doc. 1-1, Doc. 20-2 at 3. Brimstone
alleges that Kronos is in breach for failing to return the premises in its original condition
except for normal wear and tear, as required under the terms of the 2017 and 2012 leases
and Louisiana Civil Code article 2683. Doc. 1-1 at ¶¶ 10-11; Doc. 16 at ¶ 19. In addition,
Brimstone alleges that Kronos’s failure to clean-up its waste product breached additional
provisions of the 2017 lease that (1) prohibited the dumping or storage of waste and (2)
required compliance with laws and ordinances affecting the property. Doc. 16 at ¶¶ 16-18.
Brimstone seeks damages for the cost of cleanup, loss of rent, and attorney’s fees. Doc. 11 at ¶ 15. Kronos denies that it is in breach of the lease. Doc. 8.
Kronos moves for summary judgment arguing that it did not breach the lease
because the property in question had been leased for the purpose of repackaging titanium
Page 3 of 12

dioxide and any residual titanium dioxide dust remaining on the walls is consistent with
normal wear and tear. Doc. 18-1 at 5. Further, Kronos maintains that even if a breach
occurred Brimstone cannot prove its damages because titanium dioxide dust was already
on the walls and ceilings when the 2017 and 2012 leases commenced. Id. Brimstone
opposes the motion. Doc. 20.
SUMMARY JUDGMENT STANDARD
Under Rule 56(a), “[t]he court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” The moving party is initially responsible for identifying
portions of pleadings and discovery that show the lack of a genuine issue of material fact.
Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). He may meet his burden by
pointing out “the absence of evidence supporting the nonmoving party’s case.” Malacara
v. Garber, 353 F.3d 393, 404 (5th Cir. 2003). The non-moving party is then required to go
beyond the pleadings and show that there is a genuine issue of material fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To this end he must submit
“significant probative evidence” in support of his claim. State Farm Life Ins. Co. v.
Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249 (citations omitted).
A court may not make credibility determinations or weigh the evidence in ruling on
a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000). The court is also required to view all evidence in the light most favorable to
Page 4 of 12

the non-moving party and draw all reasonable inferences in that party’s favor. Clift v. Clift,
210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material fact
exists if a reasonable trier of fact could render a verdict for the nonmoving party. Brumfield
v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
Additionally, Local Rule 56.1 requires the moving party to file a statement of
material facts as to which it contends there is no issue to be tried. Local Rule 56.2 provides
that “papers opposing a motion for summary judgment shall include a separate, short and
concise statement of the material facts as to which there exists a genuine issue to be tried.”
LR. 56.2. All material facts set forth in the statement required to be served by the moving
party “will be deemed admitted, for purposes of the motion, unless controverted as required
by this rule.” 1 Id.
LAW AND ANALYSIS
The parties agree that Louisiana law governs the lease in question. In Louisiana,
“the lease contract is the law between the parties in defining their respective rights and
obligations.” Tenet HealthSystem Surgical, LLC v. Jefferson Parish Hosp., 426 F.3d 738,
741 (5th Cir. 2005). The Louisiana Civil Code serves to fill any gaps in the parties’
agreement and “for determining its overall validity and effectiveness.” Schwegmann Fam.
Tr. No. 2 v. John Hancock Life Ins. Co., 345 F. App’x 13, 15 (5th Cir. 2009) (citing La. Civ.
Code art. 2668 cmt. (e)). Article 2683 sets forth a lessee’s principal obligations as follows:

In this instance, Brimstone filed a Statement of Undisputed Facts setting forth material facts as to which there is no
genuine dispute. Doc. 20-1. However, Brimstone failed to controvert or dispute Kronos’s Statement of Undisputed
Facts as required under Local Rule 56.2. As such, Kronos’s statement is deemed admitted for purposes of this
summary judgment. Allen v. C&H Distributors, LLC, 2015 WL 1399683, at *1 n.1 (W.D. La. Mar. 26, 2015).
1

Page 5 of 12

“(1) to pay the rent in accordance with the agreed terms; (2) to use the thing as a prudent
administrator and in accordance with the purpose for which it was leased; and (3) to return
the thing at the end of the lease in a condition that is the same as it was when the thing was
delivered to him, except for normal wear and tear[].” La. Civ. Code art. 2683.
A breach of contract claim has three essential elements: (1) the obligor’s undertaking
to perform an obligation, (2) the obligor’s failure to perform the obligation (the breach),
and (3) damages to the obligee resulting from the breach. IberiaBank v. Broussard, 907
F.3d 826, 835 (5th Cir. 2018) (citation omitted). “The first two elements of a breach of
contract claim, obligation and breach, involve issues of both contractual interpretation as a
matter of law, as well as questions of fact regarding whether the actions of the parties
actually constituted the alleged breach under the applicable contractual terms.” Id. (citation
omitted). The element of damages is a question of fact. Id.
The “[i]nterpretation of a contract is the determination of the common intent of the
parties.” La. Civ. Code art. 2045. “When the words of a contract are clear, explicit, and
lead to no absurd consequences, no further interpretation may be made in search of the
parties’ intent.” La. Civ. Code art. 2046. “A doubtful provision must be interpreted in light
of the nature of the contract, equity, usages, the conduct of the parties before and after the
formation of the contract, and of other contracts of a like nature between the same parties.”
La. Civ. Code art. 2053. Words used in a contract “must be given their generally prevailing
meaning.” La. Civ. Code art. 2047. “Each provision in a contract must be interpreted in
light of the other provisions so that each is given the meaning suggested by the contract as
a whole.” La. Civ. Code art. 2050.
Page 6 of 12

A.

Normal Wear and Tear

The 2017 lease contained the following provision: “Leased premises shall be
returned to its original condition at the expense of Lessee, with exception of normal wear
and tear.” Doc. 1-1 at 8. Kronos argues that it did not breach the lease because any residual
titanium dioxide dust left behind when it vacated the premises constitutes “normal wear
and tear” based on the purpose for which it was leased. Doc. 18-1 at 9. Brimstone counters
that it was the mutual intent of the parties for Kronos to return the leased premises to its
original, clean condition, as it was delivered to them. 2 Doc. 20 at 10; Doc. 20-2 at 3.
In support of its position Kronos cites Terrebonne Parish Sch. Bd. v. Castex Energy,
Inc., 893 So.2d 789 (La. 2005) to argue that the determination of “wear in tear” in a
particular case depends on the purpose for which the property is leased. Doc. 18-1 at 9.
The court finds the Castex case inapposite to the matter at hand. First, the issue in Castex
was whether the Louisiana Mineral Code contained an implied duty to restore the surface
of the land after the lessee, an oil and gas company, dredged canals created for oil
exploration that caused coastal erosion. Castex, 893 So.2d at 791. Second, the underlying
mineral lease in Castex specifically provided the defendant with permission to dredge the

2

As noted above, Brimstone argues that the clear mutual intent of the parties in each lease agreement was that the
leased premises would be returned in its original, clean condition, in which it was originally received when the series
of leases began. Doc. 20 at 10. Brimstone maintains that the common meaning of wear and tear simply refers to
ordinary and normal deterioration. Id. at 12. Brimstone contends that Kronos completely failed to return the facility
in the good order in which it was originally received when the leasing relationship between the parties began. Id. In
support, Brimstone cites Southland Indus. Park v. Matheson Tri-Gas, 2007 WL 2713412 (La. App. 1 Cir. 9/19/07), a
similar fact situation involving multiple leases between the same parties over twenty-five years. The leases in that
case contained a provision requiring the lessee to return the leased premises to their original condition at the
termination of the lease, which the court interpreted to mean the termination of the tenancy, not merely the most recent
lease. Id. at *3. Because this matter is before the Court based on the Defendant’s motion, it is not necessary to
determine the meaning of “original condition” as it is used in the 2012 and 2017 leases at this time.

Page 7 of 12

canals that caused the loss of land, which led the court to reason that the land was “worn
and torn” in the manner contemplated by the parties. Id. at 800. Kronos contends that
because Brimstone allowed it to use the premises for repackaging titanium dioxide, it was
aware that its use for that purpose would result in titanium dioxide dust accumulating on
the walls and ceilings. Doc. 18-1 at 11. As such Kronos maintains that the premises was
left “worn and torn” in a manner contemplated by the parties. Id. at 12.
Based on the record presented, the Court cannot find on summary judgment that the
state of the premises upon Kronos’s departure was normal wear and tear. First, the 2017
lease does not specifically state that the premises would be used for the purposes of rebagging titanium dioxide. Second, Brimstone has presented the Court with 73 photographs
of the inside of its property upon Kronos’s departure, which shows white dust covering the
entire facility from its floors up to the ceiling and rafters. Docs. 20-3 to 20-76. The
photographs suggest that Kronos made no effort to clean the premises upon departure. Id.
In response, Kronos argues that cleaning expenses are considered normal wear and tear and
suggests that the cleaning was mostly unnecessary. Doc. 22 at 3. Brimstone maintains that
cleaning was necessary, noting that titanium dioxide would fall from the ceiling, which was
exacerbated when a wall was hit, or a door was opened or closed. Doc. 20-2 at 2.
Brimstone also contends it could not make necessary repairs to reoffer the property for
lease to new tenants until the property was remediated by a professional cleaning company.
Id. at 3. Based on the information above, issues of material fact exist that prevent the Court
from determining on summary judgment that the accumulated dust was merely wear and
tear.
Page 8 of 12

B.

Alleged violation of state and federal regulations

As noted above, Brimstone also alleges that by failing to clean-up the titanium
dioxide Kronos breached provisions of the 2017 lease that (1) prohibited the dumping or
storage of waste and (2) required compliance with laws and ordinances affecting the
property. Doc. 16 at ¶¶ 16-18. Brimstone argues that all prior leases, including the 2012
and 2017 leases, contained a provision that Kronos agreed to comply with any regulation
or ordinance affecting the property. Doc. 20 at 13. The provision in question reads as
follows: “Lessee shall comply with all laws and ordinances affecting this property, and
nothing shall be placed or done on the property by Lessee which will cause forfeiture of
any insurance.” Doc. 1-1 at 7.
Brimstone maintains that the titanium dioxide material abandoned at the premises
constitutes improper storage of solid waste in violation of the lease and state and federal
regulations. Doc. 20 at 13. In support, Brimstone has attached the affidavit of its expert,
H. DeWayne Corley, a geologist experienced with solid/hazardous waste permitting and
disposal. Doc. 20-78. Therein, Mr. Corley opines that the abandoned titanium dioxide is
considered solid waste under state law that may only be disposed of at a permitted waste
facility, and the Brimstone premises did not have such a permit issued by the Louisiana
Department of Environmental Quality. Id. at 3. For this reason, Brimstone contends that
Kronos violated a state law and breached the lease. Doc. 20 at 13.
Kronos counters that no public authority has found that it violated any law or
regulation with respect to the titanium dust left on the walls and ceiling of the warehouse,
Page 9 of 12

which Kronos suggests renders the lease provision inapplicable. Doc. 22 at 4. Moreover,
Kronos argues that Brimstone has offered no authority to support its position that failure to
clean up the warehouse amounted to a regulatory violation, which is a legal conclusion
outside of Mr. Corley’s purview. Id.
The Court has reviewed the sections of the Louisiana Administrative Code under
Title 33, Environmental Quality cited by Mr. Corley. The regulations state: “all solid waste
shall be processed or disposed of at a permitted solid waste facility,” with some exceptions
not relevant to this case. La. Admin. Code Tit. 33, pt. VII, § 315(C). The term “solid
waste” is defined in relevant part as: “other discarded material, including solid, liquid,
semisolid, or contained gaseous material resulting from industrial, commercial, mining,
agricultural operations, [] community activities, and construction/demolition debris.” Id.
at § 115. Titanium dioxide dust discarded from the industrial re-bagging process would
meet the definition of solid waste. The term “abandonment” means “to leave behind or
desert solid waste at a location without adhering to the proper disposal or processing
standards required by these regulations.” Id.

Finally, the regulations state that the

abandonment of solid waste is considered an act of disposal. Id. at § 315(D).
Whether the titanium dust was abandoned by Kronos, and thus disposed of
improperly, is dependent upon whether it is ultimately determined that the dust is consistent
with wear and tear. If attributable to wear and tear the disposal responsibility would rest
with Brimstone. As such, summary judgment on this issue must be denied.

Page 10 of 12

C.

Damages

Kronos argues that even if there were a breach Brimstone will be unable to meet its
burden to prove damages. Doc. 18-1 at 12. First, Kronos maintains that Brimstone cannot
recover any damages attributable to titanium dioxide dust that accumulated prior to the
commencement of the 2012 or 2017 lease because the execution of the new lease
terminated the prior lease agreement. Id. at 13. Kronos argues that each new lease required
the premises to be returned in original condition, except normal wear and tear, which would
have been the condition of the premises in 2012 and 2017, respectively. Id. Because
Brimstone has not provided evidence of the condition prior to the commencement of either
lease, Kronos argues that Brimstone is unable to prove that Kronos failed to return the
warehouse in its original condition. Id. at 13-14.
Second, Kronos argues that Brimstone cannot meet its burden to establish the
amount of damages resulting from cleaning only the dust that accumulated after 2012,
which is the only amount Brimstone may recover. Id. at 14. Kronos maintains that because
the warehouse had been used for many years prior to 2012, at least a portion of the dust
that was cleaned accumulated prior to years covering the 2012 and 2017 leases. Id. at 15.
Kronos contends that Brimstone cannot submit the total cost of cleanup but instead must
provide evidence that would enable the Court to determine the proportion of the cleanup
attributable to the dust accumulated after 2012. Id. at 16.
Brimstone counters that Kronos is responsible for the total cost of cleanup based on
the language in the 2017 lease that the “premises shall be returned to its original condition
at the expense of the Lessee, with the exception of normal wear and tear.” Doc. 20 at 14.
Page 11 of 12

Brimstone also argues that it is reasonable under the circumstances of this case for the
Court to fix the amount of damages as best as it can. Id. at 15.
Even if the Court assumes that Brimstone has not provided any evidence supporting
a calculation of damages for cleaning only the titanium dioxide that accumulated after 2012
or 2017, summary judgment is not warranted based on a failure to apportion the damages.
Given the nature of the damage involved, titanium dust on the walls and ceilings of the
premises, it would be impossible to distinguish which grains of dust settled prior to 2012
or 2017, and which grains of dust settled after. As such, the Court will not grant summary
judgment on this basis.
CONCLUSION
For the reasons stated above, the Motion for Summary Judgment (Doc. 18) filed
by Kronos Louisiana, Incorporated will be DENIED.
THUS DONE AND SIGNED in Chambers on this 27th day of March, 2024.

_________________________________________

JAMES D. CAIN, JR.
UNITED STATES DISTRICT JUDGE

Page 12 of 12