Kizer v. Burk

7 Citing cases

  1. Claitor v. Delahoussaye

    858 So. 2d 469 (La. Ct. App. 2003)   Cited 18 times

    Furthermore, there is no legal presumption of consent that arose from plaintiff's acceptance of the partial rental payments made by defendant during the hold-over period. SeeKizer v. Burk, 439 So.2d 1051, 1053 (La. 1980); see alsoIllinois Central Gulf Railroad Co. v. International Harvester Co., 368 So.2d 1009, 1012 (La. 1979), wherein the supreme court held that the acceptance of rental payments, silence as to changes in the use of leased premises, and a delay in filing eviction proceedings did not necessarily indicate that the lessor had impliedly consented to a sublease or modification of the lease. In the case sub judice, we find that plaintiff's acceptance of the partial rental payment during the hold-over period and his notice to defendant that defendant was in default by not paying triple rent during that same period, did not constitute an implied consent to defendant's continued occupancy such that the lease could be considered reinstated or the rent amount modified.

  2. Coxe v. F.W. Woolworth Co.

    652 F. Supp. 64 (M.D. La. 1986)   Cited 3 times

    Assuming for purposes of argument, however, that the lease document itself is silent on the question of whether the originally intended use for the leased premises is to be the exclusive use thereof, the court must allude to the surrounding circumstances in order to resolve this issue. Kizer v. Burk, 439 So.2d 1051 (La. 1980); Tullier v. Tanson Enterprises, Inc., 367 So.2d 773 (La. 1979). The cited cases are the latest expressions of the Louisiana Supreme Court on this issue.

  3. ABL Management, Inc. v. Board of Supervisors of Southern University

    773 So. 2d 131 (La. 2000)   Cited 64 times

    LA.CIV. CODE ANN. art. 2669; Kizer v. Burk, 439 So.2d 1051 (La. 1980). Cause is the reason why a party obligates himself.

  4. Pear v. Davenport

    67 Mass. App. Ct. 239 (Mass. App. Ct. 2006)   Cited 11 times
    Concluding that tenants were not entitled to specific performance of option to purchase property when they failed to comply with terms of lease by not making timely rental payments

    See, e.g., Larry v. Brown, 153 Ala. 452, 457-458 (1907); Bishop v. Melton, 202 Ark. 732, 734, 736 (1941); Brauer v. Freccia, 159 Conn. 289, 292-294, 295 (1970); Costello v. Curtis Building Partnership, 864 So. 2d 1241, 1244 (Fl.Dist.Ct.App. 2004); Clyde v. Ware, 163 Ga. 917, 918-919 (1927); Lake Shore Country Club v. Brand, 339 Ill. 504, 506, 509-511, 521-526 (1930); Freeman v. Rose, 187 Neb. 176, 178 (1971); Corbray v. Stevenson, 98 Wash. 2d 410, 412, 413, 417 (1982); Hafemann v. Korinek, 266 Wis. 450, 455-456 (1954). Cf. Kizer v. Burk, 439 So. 2d 1051, 1053-1054 (La. 1980). Contra, e.g., Bridges v. Jeffrey, 437 S.W.2d 732, 733 (Ky.Ct.App. 1968); Crystal Lake Cemetery Assn. v. Farnham, 129 Minn. 1, 3 (1915); Mack v. Dailey, 67 Vt. 90, 91-92 (1893).

  5. Upton v. Whitehead

    935 So. 2d 746 (La. Ct. App. 2006)   Cited 4 times
    In Upton v. Whitehead, 41,131 (La.App. 2d Cir. 6/28/06), 935 So.2d 746, we reversed a summary judgment, that had resulted in the Whiteheads' eviction, upon finding that the parties' oral agreement was a bond for deed contract and that a material issue of fact existed as to whether the Uptons had complied with the mandatory notice required by La.R.S. 9:2945(A) for cancellation of the contract.

    Also, while Upton would characterize the contract as a lease with an option to purchase, the contract clearly implies that at the end of a term of 177 months of timely payments, Whitehead would be entitled to delivery of a deed without the necessity of an election of an option which would amount to acceptance by Whitehead of an offer to sell. Likewise, the contract does not mirror the lease/contract to sell agreement in Kizer v. Burk, 439 So.2d 1051 (La. 1980). There, the agreement provided for a three-year lease with rent totaling $12,000 to be applied to the $221,400 sale price.

  6. Nesbitt v. Dunn

    672 So. 2d 226 (La. Ct. App. 1996)   Cited 18 times
    In Nesbitt, the would-be purchasers of a home alleged that the sellers' failure to disclose an engineering report alleging documenting flaws in the home's foundation amounted to negligent misrepresentation.

    As their fifth assignment of error, defendants assign as error the trial court's failure to find plaintiffs did not act in good faith and failure to find they breached their obligation to faithfully perform pursuant to the contract by withholding information regarding the Hyde Report. Defendants allege Nesbitt was fully aware of the property and the fact that there had been some shifting in the foundation; she intentionally did not inquire about the Hyde Report obtained by the previous potential purchasers so that she would not have to disclose such information; she was aware an engineer had rendered a report which reflected substantial defects with the foundation and that a prior offer of almost 25 percent less than the listed price had been made as a result of the repairs necessitated by the engineer's report. Defendants cite Kizer v. Burk, 439 So.2d 1051 (La. 1980) in support of their argument. In Kizer, the Supreme Court held the plaintiff was entitled to dissolution of the contract where defendant, despite a contract provision requiring him to faithfully and carefully guard and protect the premises, made an unauthorized sale of standing timber on the premises.

  7. IP Timberlands Operating Co. v. Denmiss Corp.

    657 So. 2d 282 (La. Ct. App. 1995)   Cited 17 times
    Holding that interest is not due on a debt until the amount is ascertainable

    In a final attempt to bar execution of the option, Denkmann asserts that the court's order of specific performance of the option clause was erroneous in light of IP's breaches of the contract. In making this argument, Denkmann relies primarily on the case of Kizer v. Burk, 439 So.2d 1051 (La. 1980). Denkmann also cites Powell v. Codifer Bonnabel, Inc., 167 La. 97, 118 So. 817 (1928), and Pruyn v. Gay, 159 La. 981, 106 So. 536 (1925).