This matter arises out of the execution of a License Agreement between Camellia Grill Holdings, Inc. ("Camellia Grill"), as licensor, and The Grill Holdings, L.L.C. ("Grill Holdings",) as licensee. Grill Holdings appeals a trial court judgment, which granted Camellia Grill's motion for summary judgment and declared "the License Agreement entered into between the parties on August 27, 2006 to be terminated effective May 25, 2012, restoring all rights to the licenses marks to the mover, CAMELLIA GRILL HOLDINGS, INC." Camellia Grill also appealed arguing that the trial court erred in determining that May 25, 2012, was the effective date of the termination of the parties' agreement and that June 1, 2011 should be the effective date of termination. Camellia Grill also filed an answer to Grill Holdings' appeal requesting additional attorney's fees for the work done on the appeal. For the following reasons, we hereby affirm the trial court's judgment granting summary judgment in favor of Camellia Grill, we reverse that part of the judgment that determined the effective date of termination of the License Agreement to be May 25, 2012, and we amend the judgment to find that the effective date of termination of the License Agreement was June 1, 2011, and to include additional attorney's fees of $3,222.00 for Camellia Grill's work on this appeal.
On June 6, 2011, Camellia Grill filed a petition for declaratory judgment seeking a judicial determination that a License Agreement it had with Grill Holdings had been breached
On June 24, 2011, Grill Holdings filed an answer that made a general denial and
In opposition to the motion for summary judgment, Grill Holdings argues that "the parties tacitly modified the License Agreement when CGH [Camellia Grill] began routinely accepting royalty payments for the years 2007, 2008, 2009, 2010, and half of 2011, including a $75,000 check on October 8, 2009 for the opening of a new restaurant unit in Destin, Florida." Grill Holdings argues that Camellia Grill's allegations of violations are made in bad faith and that the purported violations of the contract are minor technicalities that do not rise to the level of a material breach. Further, Grill Holdings opposed the motion for summary judgment arguing that it is entitled to have its day in court to prove its affirmative defenses of waiver, estoppel, acquiescence, modification of the contract, accord and satisfaction, payment, and ratification. In support of its opposition to summary judgment, Grill Holdings attached as exhibits: (1) a copy of Camellia Grill's complaint and amended complaint filed in Mississippi, which Camellia Grill dismissed without prejudice; (2) various correspondence between Camellia Grill and Grill Holdings regarding the License Agreement, the trademarks, service marks and the "altered marks," and the alleged defaults; (3) the deposition of Michael Shwartz; (4) an amended affidavit of Michael Shwartz; (5) a copy of the trademarked logos and dates of renewal; (6) Grill Holdings' answers to interrogatories, request for production and requests for admission; and (7) an affidavit of Kathie Houte, Grill Holdings' bookkeeper.
In its reply to the opposition to motion for summary judgment, Camellia Grill argues that the License Agreement is clear and unambiguous and that Grill Holdings failed to provide credible evidence of any factual dispute which would require a trial. Thereafter, Grill Holdings filed a supplement to its opposition to motion for summary judgment and attached as exhibits (1) the May 22, 2012 affidavit of Hichan Khord, and (2) the September 14, 2011 affidavit of Mark Stein.
After a hearing on May 25, 2012, the trial court granted Camellia Grill's motion for summary judgment, which terminated the License Agreement, effective May 25, 2012, and granted reasonable attorney's fees, to be determined at a later date, pursuant to the License Agreement.
On July 27, 2012, Grill Holdings filed a motion for new trial, which the trial court denied on August 1, 2012. Thereafter, on
Before addressing the merits of the appeal, we will address Grill Holdings' argument that the trial court abused its discretion in denying its motion for new trial. The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion. Guillory v. Lee, 2009-0075, p. 38 (La.6/26/09), 16 So.3d 1104, 1131. A party seeking a new trial on the basis of newly discovered evidence must demonstrate that it has done all that is reasonable to lead to timely discovery of the evidence. McGhee v. Wallace Drennan, Inc., 2004-0950, p. 10 (La.App. 4 Cir. 4/20/05), 904 So.2d 3, 9, citing Barker v. Rust Engineering Co., 428 So.2d 391 (La.1983). Newly discovered evidence justifies a new trial only if evidence: (1) is discovered after trial; (2) could not, with due diligence, have been discovered before or during the trial; and (3) is not merely cumulative, but instead would tend to change the result of the case. Turner v. Dameron-Pierson Co., Ltd., 95-0143, p. 2 (La.App. 4 Cir. 11/16/95), 664 So.2d 739, 740.
After reviewing the motion for new trial, along with the exhibits, we find no abuse of the trial court's discretion in denying Grill Holdings' motion for new trial. Grill Holdings has not demonstrated that any of the new evidence submitted with the motion for new trial could not have been discovered prior to the hearing and/or that the new evidence would have changed the trial court's finding that Grill Holdings breached the written License Agreement.
On appeal, Grill Holdings argues that the trial court erred in granting Camellia Grill's motion for summary judgment. Specifically, Grill Holdings argues that: (1) Camellia Grill failed to perform its contractual obligations in good faith; (2) there are genuine issue of material fact as to whether it [Grill Holding] substantially performed the contract; (3) paragraph three of the contract is ambiguous and requires the court to look beyond the contract to determine the parties' intent; (4) it [Grill Holdings] is entitled to prove its affirmative defenses of waiver, acquiescence, modification, ratification, and payment; (5) two of the breaches alleged by Camellia Grill [for failure to timely notify of sub-licensees and failure to pay the fourth quarter of 2008 royalty payment of $197.73] are not genuine breaches; (6) Camellia Grill should be estopped from the termination of the contract since Camellia Grill allowed it to make a substantial investment and open two additional Camellia Grills; (7) this case is appropriate for the court to apply the doctrine of judicial control; and (8) the trial court erred in awarding attorney's fees.
Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled
The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id. La. C.C.P. art. 966(C)(2) provides that where, as in the instant case, the party moving for summary judgment will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of the adverse party's claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law.
According to La. C.C. art. 2045, "[i]nterpretation of a contract is the determination of the common intent of the parties." When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. Each provision in a contract must be interpreted in light of the other provisions. La. C.C. art. 2050. In the event of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. La. C.C. art. 2056.
The License Agreement, signed on August 27, 2006, by Camellia Grill, the licensor, and Grill Holdings, the licensee, provides in pertinent part:
After reviewing the record, as well as Grill Holdings' arguments on appeal, we find no error in the trial court's judgment, which granted Camellia Grill's motion for summary judgment. The record is devoid of any evidence that Camellia Grill acted in bad faith in its dealings with Grill Holdings; rather, we find that Camellia Grill provided many opportunities for Grill Holdings to cure the defaults before taking legal action. We also agree with Camellia Grill that section 3 of the License Agreement
Additionally, we find no error in the trial court judgment awarding attorney's fees at a later date (judgment signed on October 9, 2012) since the July 19, 2012 judgment granted "reasonable attorney's fees and all costs of these proceedings pursuant to Section 17.2 of the License Agreement, with the amounts to be determined by further proceedings herein." As stated by the trial court in her reasons for judgment regarding the attorney's fees, "[a]s the prevailing party in the audit dispute and the summary judgment, Camellia Grill is entitled to attorney's fees and costs incurred. Camellia Grill has provided the Court with evidence supporting the attorney's fees and costs associated with the litigation." The License Agreement clearly provides for an award of attorney's fees under section 17.2, which states:
After reviewing the record, we find that the attorney's fees are supported by the record and are reasonable.
Camellia Grill answered the appeal for the purpose of seeking additional attorney's fees incurred in this appeal. Although Grill Holdings filed a motion to strike the answer, we find no merit in this motion as this Court, on March 8, 2013, allowed the filing of both the late request for oral argument filed by Grill Holdings and the late request to file an answer by Camellia Grill. Further, this Court has authority to make such an award pursuant to La. C.C.P. art. 2164 and may "render any judgment which is just, legal, and proper upon the record on appeal." Accordingly, we hereby amend the judgment to include additional attorney's fees incurred
Camellia Grill also appealed the July 19, 2012 judgment but only insofar as the trial court's determination of the effective date of termination being May 25, 2012, rather than the date prayed for in the petition, June 1, 2011. Camellia Grill argues that the License Agreement is controlling and that according to section 2.1, termination became effective immediately upon the issuance of written notice on May 31, 2011. We agree.
Camellia Grill issued written notice to Grill Holdings on May 31, 2011, "terminating the License ... effective immediately for Grill's failure to comply with four critical provisions of the License." Specifically, Camellia Grill listed two defaults which remained uncured on that date: (1) Grill Holdings was using "an altered version of the fork/flower logo Mark" and (2) Grill Holdings failed to send a 2008 Royalty check which was originally due by January 10, 2009. The License Agreement is clear and explicit that termination is effective immediately upon written notice from the Licensor [Camellia Grill] to Licensee [Grill Holdings] when Licensee "fails to comply with any provision of this Agreement." Thus, it was clearly erroneous for the trial court to find that the effective date of termination was May 25, 2012, that being the date of the hearing on the Motion for Summary Judgment, rather than the contractually agreed upon date as set forth in the License Agreement. Accordingly, we hereby reverse that part of the trial court judgment and amend the judgment to find the effective date of termination was June 1, 2011.
For these reasons, we hereby affirm the trial court's judgment granting summary judgment in favor of Camellia Grill, we reverse that part of the judgment that determined the effective date of termination of the License Agreement to be May 25, 2012, and we amend the judgment to find that the effective date of termination of the License Agreement was June 1, 2011, and to include additional attorney's fees of $3,222.00 for Camellia Grill's work on this appeal.
