FALGOUT CANAL BOAT SLIPS v. EDWIN HENRY (2026)

Defendant/appellant, Edwin Henry, appeals the trial court's judgment dismissing his reconventional demand against plaintiff/appellee, Falgout Canal Boat Slips, L.L.C. (“Falgout Canal”). For the following reasons, we recall the show cause order issued by this Court, we reverse the amended judgment of the trial court, and we render judgment in favor of Henry and against Falgout Canal.

FACTS AND PROCEDURAL HISTORY

On March 3, 2023, Falgout Canal filed a suit for damages against Henry, alleging he breached a lease agreement (the “Lease”) by failing to make repairs to leased property (the “leased premises”) for damage caused by Hurricane Ida. Falgout Canal sought damages, as well as attorney's fees and costs, per the terms of the lease agreement. Henry answered the suit, raising peremptory exceptions of no cause of action and no right of action and asserting he complied with the lease agreement. Henry alleged that Falgout Canal's damages were caused by an act of God, its own actions, or the actions of a third party.

On January 28, 2025, Henry filed a reconventional demand against Falgout Canal, alleging he was entitled to a return of lease payments after August 29, 2021, when Hurricane Ida struck the area, causing damage to the leased premises.² Henry alleged the destruction caused by Hurricane Ida damaged the leased premises to the extent they could not be used for their intended purpose and therefore, terminated the lease agreement. Henry averred that after Hurricane Ida he continued to make lease payments to Falgout Canal and those payments constitute payment of a thing not due. Falgout Canal filed an answer to Henry's reconventional demand, generally denying the allegations against it.

A bench trial was held on April 8, 2025. Falgout Canal presented testimony from Jimmy Bailey, Sr., an employee of K & K Marine, a construction company. Bailey testified that on July 3, 2023, he provided Falgout Canal with an estimate to repair the leased premises, which were damaged during Hurricane Ida. The estimated repairs included the removal of a boat shed, including the walls, ceiling, and boat lifts and disposal of all collected materials. Bailey identified photographs of the leased premises, which show damage to a boat shed, including missing sections of the ceiling and materials scattered throughout the boat shed.

William Wurzlow, one of the owners of Falgout Canal, testified at trial that Falgout Canal owns property and “people come in and lease those spots and build boat sheds or camps, whichever.” Wurzlow noted that Falgout Canal owns about 100 sites that it rents out and about 80 of those sites have boat sheds. Wurzlow stated that he was familiar with the Lease, explaining the sites leased to Henry, described as boat slips “171 through 180,” contained the damaged boat shed shown in the photographs identified by Bailey. The Lease, which was introduced and admitted into evidence, provides, in relevant part, that Henry “agrees to care for the leased premises in a prudent manner and to return same to [Falgout Canal] at the termination of this lease in as good a condition as at the commencement thereof, normal and usual wear and tear excepted.”³ Wurzlow testified he was unaware of any damage to the leased premises prior to Hurricane Ida,⁴ but after the storm “the tin and all fell in the water and on the roads, and it was all over the place.”

Wurzlow testified that Henry provided Falgout Canal with written notice that he would not be extending the Lease for another term after it expired on December 31, 2022. Wurzlow stated he never saw Henry use the leased premises after Hurricane Ida and it was clear to Wurzlow that there was debris in the water and the roof of the building had completely collapsed. During cross-examination, Wurzlow explained that when Henry began leasing the leased premises, the boat shed was already present and Henry did not build any boat sheds on the leased premises. Wurzlow stated his agreement that after Hurricane Ida, and at its current condition at the time of trial, the leased premises were dangerous and unusable. Wurzlow explained that other than clearing the road, he had not taken any steps to repair the leased premises.

Wurzlow identified copies of two checks from Henry made payable to Falgout Canal, which were introduced and admitted into evidence. Wurzlow confirmed the first check, dated January 21, 2021, in the amount of $6,880.00, was for payment of the 2021 lease term and the water bill for the leased premises for the year. Wurzlow stated the second check, dated July 21, 2022, in the amount of $6,880.00, was for payment of the 2022 lease term and the water bill for the leased premises for the year. Wurzlow testified the checks were deposited into a bank account for Falgout Canal. The Lease required Henry to pay Falgout Canal $6,720.00 per year, payable annually in advance. The Lease did not require Henry to pay any amounts for water, annually or otherwise.

After Wurzlow testified, Falgout Canal rested its case. Henry then argued the merits of his exception of no right of action, asserting Falgout Canal failed to prove it owned the leased premises, and therefore, had no right of action to seek damages from Henry to repair the leased premises. Henry also argued Falgout Canal had no right of action against him because the Lease is silent as to which party is responsible for an act of God and the Lease terminated when the leased premises were destroyed by Hurricane Ida—an act of God. Henry further argued Falgout Canal had no right of action because there was no evidence that Henry owned the building on the leased premises that was destroyed. The trial court stated it would pretermit the exceptions and allowed Henry an opportunity to call witnesses. Henry rested his case without calling any witnesses. The trial court took the exceptions under advisement and gave the parties time to file briefs addressing the merits of the exceptions.

On July 15, 2025, the trial court rendered a written judgment that provides, in relevant part:

IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiff, Falgout Canal Boat Slips, LLC has failed to prove ownership of the property at issue.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that judgment is granted in favor of Edwin Henry.

The same date, the trial court signed written reasons for judgment, explaining, in pertinent part, that “[t]here are no documents in the record that establish any record title ownership of the land claimed to be owned by [Falgout Canal.]” The trial court further noted that there was no evidence in the record to prove that Henry owned the boat shed.

On July 21, 2025, the trial court signed a written judgment that provides, in pertinent part:

IT IS ORDERED, ADJUDGED, AND DECREED that Defendant, Edwin Henry's, Reconventional Demand filed on January 28, 2025 is denied.

In written reasons for judgment, provided per Henry's request, the trial court stated that after Henry argued the merits of his exceptions, he rested his case “without putting on any evidence.” Therefore, the trial court found that Henry did not present any evidence to support his reconventional demand. Henry appealed the trial court's July 21, 2025 judgment denying his reconventional demand.

RULE TO SHOW CAUSE

On March 3, 2026, this Court, ex proprio motu, issued a rule to show cause pointing out the following defect in the July 21, 2025 judgment:

The July 21, 2025 judgment (appellate record page 203) at issue appears to lack appropriate decretal language as it fails to name specific parties who the ruling is in favor of and identify the relief awarded as required by [La. C.C.P. art. 1918(A)].

This Court ordered the parties to show cause by briefs on or before March 18, 2026, whether the appeal should be dismissed for lacking appropriate decretal language. On March 18, 2026, Henry filed a responsive brief requesting the case be remanded to the trial court for the limited purpose of allowing the trial court to issue an amended final judgment containing proper decretal language.

Accordingly, on May 19, 2026, this Court issued an interim order remanding the case for the limited purpose of requesting that the trial court, in accordance with La. C.C.P. art. 1951, issue an amended judgment that corrects the deficiencies and complies with La. C.C.P. arts. 1918(A), 1951, and 2088(A)(11). On June 2, 2026, the trial court signed an amended judgment correcting the deficiencies contained within the July 21, 2025 judgment. The amended judgment was supplemented into the appellate record on June 8, 2026. Considering the June 2, 2026 amended judgment, which cured the noted defects and contains appropriate decretal language, we recall the March 3, 2026 rule to show cause order and maintain the appeal. See Hill International, Inc. v. JTS Realty Corporation, 2021-0157 (La. App. 1 Cir. 10/20/22), 370 So. 3d 16, 24.

DISCUSSION

In his sole assignment of error, Henry argues that the trial court erred by dismissing his reconventional demand against Falgout Canal. Henry argues the trial court legally erred by finding that Henry presented no evidence to support his claims when he presented evidence during Falgout Canal's case-in-chief. Henry also argues that to the extent that the trial court's determination was a factual one, it manifestly erred by determining that Henry failed to meet his burden of proof. Henry points out that Wurzlow testified that the leased premises were dangerous and unusable in their current state and have been so since Hurricane Ida. Henry argues that pursuant to La. C.C. art. 2714, the Lease terminated on August 29, 2021 when Hurricane Ida destroyed the leased premises. Henry contends that “[o]nce the [L]ease terminated due to the destruction of the property and [Falgout Canal] failed to repair and/or replace the damaged property, the [L]ease terminated and [Henry] had no further obligation, making any further lease payments ‘payment of a thing not due[.]” ’ Henry notes that Wurzlow testified during cross-examination that Falgout Canal accepted Henry's lease payments for all of 2021 and 2022. Henry argues he is entitled to $9,171.00, the rent he paid to Falgout Canal after the Lease terminated due to Hurricane Ida.

A reconventional demand is an incidental demand. La. C.C.P. art. 1031(B). An incidental demand may be tried separately from the principal demand if so ordered by the trial court. See La. C.C.P. art. 1038. Here, the record before us does not contain an order by the trial court for separate trials of the principal and reconventional demands. Additionally, the transcript of the trial indicates the principal and reconventional demands were tried at the same time.

A plaintiff-in-reconvention must prove his reconventional demand by a preponderance of the evidence. Sharp v. Travelers Indem. Co., 122 So. 2d 833, 835 (La. App. 1 Cir. 1960); see Silva v. Calk, 30,085 (La. App. 2 Cir. 12/10/97), 708 So. 2d 418, 422. In Sharp, this Court explained that a reconventional demand may be supported by evidence in the record, explaining in pertinent part:

The presence of testimony in the record sufficient to prove a defendant's reconventional demand to a reasonable certainty by a preponderance of the evidence is all that is necessary to support the demand in reconvention. It matters not whether the evidence relied upon by reconvenor was elicited from witnesses called by reconvenor or from plaintiff's witnesses. So long as the evidence is properly of record it may be considered in support of the reconventional demand.

Sharp, 122 So. 2d at 836. Thus, to the extent the trial court dismissed Henry's reconventional demand based on Henry's failure to present evidence during his “case-in-chief,” we find the trial court legally erred. Additionally, we find this legal error interdicted the fact-finding process, and therefore, we conduct a de novo review of the record to determine whether Henry proved his reconventional claims by a preponderance of the evidence. See Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d 731, 735; Forbes v. Firmin, 2021-0439 (La. App. 1 Cir. 12/30/21), 340 So. 3d 1029, 1033-34.

Louisiana Civil Code article 2714 provides, “If the leased thing is lost or totally destroyed, without the fault of either party, or if it is expropriated, the lease terminates and neither party owes damages to the other.” The 2004 Revision Comments to Article 2714 more fully explain the effect when a leased thing is totally destroyed:

b) If the loss or destruction is total.. .then under Civil Code Article 2714 (Rev. 2004), the lease terminates, regardless of whether the events that brought about the loss or destruction are attributable to the fault of either party. Although this Article contains the phrase “without the fault of either party,” that phrase addresses the parties’ right to claim damages. That is, if the loss or destruction was not attributable to the fault of either party, then “neither party owes damages to the other.” Conversely, if the loss or destruction was attributable to the fault of one party then, of course, that party would owe damages to the other, but the lease would also terminate for the simple reason that the destruction of the whole object of the contract renders performance impossible․

* * *

(d) When the requirements of Civil Code Article 2714 (Rev. 2004) are met, the lease terminates “of right” or “by operation of law,” that is, without the need for judicial intervention․

The parties to a lease may prevent termination of the lease under Article 2714 by inserting appropriate language in the lease contract. See 2004 Revision Comment (e) to Article 2714; see also Cerniglia v. Napoli, 517 So. 2d 1209, 1210 (La. App. 4 Cir. 1987) (finding La. C.C. art. 2697, the predecessor to Article 2714, did not apply where the subject lease contained language preventing termination of the lease if the leased premises were destroyed by fire).

Henry cites Louisiana Machinery Company, LLC v. Bihm Equipment Co., 2019-1081 (La. App. 1 Cir. 8/10/21) 329 So. 3d 317, in support of his argument that the Lease terminated on August 29, 2021. In Louisiana Machinery, Don Bihm Equipment Co., Inc. (“Bihm”) leased construction equipment from Louisiana Machinery Company, LLC (“Louisiana Machinery”) and subleased the construction equipment to CB&I Environmental and Infrastructure, Inc. (“CB&I”). While CB&I was using the equipment, it caught fire, resulting in a “total loss” of the equipment. Subsequently, Louisiana Machinery filed suit against Bihm and CB&I seeking damages. Id. at 319. In response, Bihm filed a cross-claim against CB&I seeking, in pertinent part, unpaid rent from CB&I under the terms of their sublease. Id. at 319-20. Following a bench trial, the trial court ordered CB&I to pay Bihm unpaid rent after the equipment was destroyed. Id. at 320.

On appeal, CB&I argued the trial court erred in finding that additional rent was owed under the lease after the equipment was destroyed. Id. at 320-21. This Court agreed, citing Article 2714 and the 2004 Revision Comments to Article 2714, and finding that the leases terminated by operation of law when the equipment was totally destroyed. Id. at 322-23. In doing so, this Court noted that Bihm had argued to the trial court that the leases between Bihm and CB&I prevented termination by operation of law because they contained language that required CB&I to continue paying rent if the equipment was damaged and could be placed back into serviceable condition. Id. Notably, the lease agreements also contained language requiring the leased equipment to be returned in the same condition as received, less normal wear and tear. Id. at 320. This Court rejected Bihm's argument, explaining that “nothing in the language of the [lease] agreements required CB&I to pay additional rent after the total loss of the equipment.” This Court further explained that “[i]n the absence of such language, the plain language of Article 2714 requires the termination of the leases.” Id. at 323. This Court noted under Article 2714, Bihm could have sought damages by proving CB&I caused the loss of the equipment; however, it was not entitled to additional rent after the equipment was destroyed. Id. Therefore, this Court reversed the portion of the trial court's judgment awarding rental payments. Id. at 327.

Henry argues, as was the case with the leased equipment in Louisiana Machinery, that the leased premises were totally destroyed following Hurricane Ida's impact on August 29, 2021. Henry points to the testimony of Wurzlow, who stated that after Hurricane Ida, and in their current condition at the time of trial, the leased premises were dangerous and unusable. Wurlow's testimony is uncontroverted, and we find it sufficient proof, by a preponderance of the evidence, that the leased premises were totally destroyed on August 29, 2021. As in Louisiana Machinery, we find no language in the Lease requiring Henry to pay rent after total destruction of the leased premises.⁵ As such, we find the Lease terminated by operation of law on August 29, 2021. See La. C.C. art. 2714; Louisiana Machinery, 329 So. 3d at 322.

Henry seeks reimbursement for rental payments paid to Falgout Canal following the destruction of the leased premises on August 29, 2021. Henry points out that during trial Wurlow, an owner of Falgout Canal, testified that two checks from Henry, both in the amount of $6,880.00, were deposited into the bank account for Falgout Canal. Wurlow further testified the first check, dated January 21, 2021, was for payment of the 2021 lease term and the water bill for the leased premises for the year and the second check, dated July 21, 2022, was for payment of the 2022 lease term and the water bill for the leased premises for the year.

Louisiana Civil Code article 2299 states, “A person who has received a payment or a thing not owed to him is bound to restore it to the person from whom he received it.” This article applies regardless of whether the person who pays money or delivers a thing not owed does so knowingly or by mistake. Leisure Recreation & Entertainment, Inc. v. First Guaranty Bank, 2021-00838 (La. 3/25/22), 339 So. 3d 508, 518. As the Lease terminated pursuant to La. C.C. art. 2714 on August 29, 2021, Falgout Canal was not entitled to rental payments after that date. Accordingly, on de novo review of the record before us, we find Falgout Canal must reimburse Henry for the annual rental payment made for 2022, in the amount of $6,720.00, plus the rental payment for the remaining four months of 2021 (following August 29, 2021), in the amount of $2,240.00.⁶

CONCLUSION

For the foregoing reasons, we recall the show cause order issued by this Court on March 3, 2026. We reverse the trial court's June 2, 2026 amended judgment dismissing Edwin Henry's reconventional demand. We render judgment in favor of plaintiff-in-reconvention, Edwin Henry, and against defendant-in-reconvention, Falgout Canal Boat Slips, L.L.C., in the amount of $8,960.00, plus interest from the date of judicial demand, for rental payments paid to Falgout Canal Boat Slips, L.L.C. by Edwin Henry that were not owed. Costs of this appeal are assessed to Falgout Canal Boat Slips, L.L.C.

SHOW CAUSE ORDER RECALLED; JUNE 2, 2026 AMENDED JUDGMENT REVERSED; JUDGMENT RENDERED.

FOOTNOTES

2.   Henry requested, and was granted, leave of court to file his reconventional demand.

3.   The Lease is dated December 14, 2007, and states that it is effective beginning January 1, 2008 until December 31, 2012. Falgout Canal introduced into evidence an amendment to the Lease, allowing the Lease period to be extended for three additional terms of five years each. Wurzlow testified that prior to the Lease with Henry, the leased premises were leased to Terry Trosclair. Wurzlow recalled that Trosclair assigned his lease to Henry at some point.

4.   The trial court took judicial notice of the fact that Hurricane Ida struck the area on August 29, 2021. See La. C.E. art. 201 (Judicial notice may be taken of a fact “not subject to reasonable dispute in that it is either ․ [g]enerally known within the territorial jurisdiction of the trial court; or․ [c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”)

5.   Falgout Canal argues the Lease required Henry to care for the leased premises and made him “liable for any damage to the leased premises owned or placed upon same by lessor.” Falgout Canal argues this language placed the duty on Henry to fix the lease premises. We note, as did this Court in Louisiana Machinery, that the Lease language cited by Falgout Canal does not require Henry to pay rent if the leased premises are totally destroyed. Falgout Canal had the opportunity to prove Henry was liable for the damage to the leased premises, but the trial court found it failed to do so. That judgment is not before us on appeal.

6.   We decline to award Henry reimbursement for the amounts he paid to Falgout Canal for the water bill for the lease premises in 2021 and 2022. The Lease did not require Henry to make those payments and no evidence was offered regarding the parties’ agreement on this issue.

BALFOUR, J.