PLAINTIFFS ORIGINAL COMPLAINT

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July 12, 2023

WILLESTER PENN                                                            STATE OF LOUISIANA

Plaintiff,                                                                     2ND PARISH FOR THE PARISH

                                                                                                OF JEFFERSON

v.                                                                    

ISLAND REALTY; and CHRISTY               

ANGELETTE, in her official capacity as      

Rental Manager at Island Realty                    

Defendants.                                                                Case No.

 
 

PLAINTIFF’S ORIGINAL COMPLAINT

NOW COMES Willester Penn, Plaintiff, complaining of Defendants, Island Realty and Christy Angelette, and for cause would show this Honorable Court as follows:

  1. PARTIES, JURISDICTION AND VENUE
  2. Plaintiff is a male adult of sound mind and a resident of Insert Address, State & ZIP Code.
  3. Defendant Island Realty is a real estate and rentals company with their address as 10711 Chef Menteur Hwy, New Orleans, LA 70127.
  4. Defendant Christy Angelette is a female adult of sound mind. For the purposes of this suit, at all times Christy Angelette acted as an agent of Island Realty in her capacity as Rental Manager. At all times, she acted under instruction from Island Realty.
  5. Jurisdiction exists in this court pursuant to R.S. 13:2561.1 et. seq. and C.C.P. Art. 4842.
  6. Venue is proper in this court because the causes of action occurred in the Parish of Jefferson.
  7. FACTS
  8. On April 23, 2019, Plaintiff booked a weekend-long camping trip to Grand Owl, Louisiana, with Island Realty via Christy Angelette. He wanted to make the weekend special for his mother, being a Mothers’ Day weekend. Plaintiff intended to host about 15-20 family members.
  9. Plaintiff rented a 10-room cabin to host his family members from Friday, May 10, 2019 to Sunday, May 12, 2019.
  10. Unfortunately, some of Plaintiff’s family members, including Plaintiff’s mother, informed him that they would not be able to attend the camping trip and Plaintiff had to cancel the trip.
  11. Plaintiff, contacted Island Realty via email and got in touch with Christy, the Rental Manager. Plaintiff explained that some family members, including his mother, had cancelled the trip. It would have had no meaning if Plaintiff’s mother would not be able to attend.
  12. Plaintiff requested Island Realty to push the trip to May 2020. In an email sent on May 7, 2019, Christy informed Plaintiff that his request had been accepted and that no further changes would be made regardless of weather conditions.
  13. Unfortunately, the Covid-19 pandemic hit our country and local, state and federal guidelines were imposed. Louisiana was a Covid-19 hotspot.
  14. Plaintiff and his family members had to be quarantined in the month of May 2020 and were unable to attend the trip during that month.
  15. Plaintiff requested Island Realty to push the trip to May 2021 because he was unable to attend the trip in May 2020 as a result of guidelines issued in the wake of the pandemic.
  16. Island Realty declined Plaintiff’s second request. In addition to declining Plaintiff’s request, Island Realty declined to refund the money Plaintiff had paid as consideration.
  • ARGUMENT
  • The contract in force is the one that was agreed upon by Plaintiff and Island Realty via Christy Angelette in an email sent on May 7, 2019. By conduct of the parties in creating a new contract, the new contract supersedes the previous contract which is now void.
  • Plaintiff was unable to perform his obligation in the contract to attend the trip in May 2020 because of frustration. The doctrine of frustration was established in Taylor v Caldwell 122 Eng. Rep. 309 (1863). The court held as follows: “There seems no doubt that where there is a positive contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages for not doing it, although in consequence of unforeseen accidents, the performance of his contract has become unexpectedly burthensome or even impossible.”
  • It became impossible for Plaintiff to perform his contractual obligation of going for the trip in May 2020 because of the Covid-19 pandemic. Corona virus had been shown to have a high mortality rate among people with underlying medical conditions.
  • Plaintiff is a diabetic who also took high blood pressure medication. Plaintiff’s father is a cancer survivor who is also a heart patient. Plaintiff’s mother is a pre-diabetic also battling high blood pressure. Exposure to Covid-19 in May 2020 would have exposed Plaintiff to the risk of contacting Covid-19. This would have been fatal, especially to Plaintiff’s parents who are senior citizens with underlying medical conditions. The Covid-19 pandemic was unforeseeable as at May 7, 2019, when the second contract was agreed to by Plaintiff. That made it impossible for Plaintiff to attend the trip in May 2020.
  • Covid-19 was no one’s fault. It was beyond the control of Plaintiff and Defendants. It is neither party’s fault that the pandemic made it impossible for Plaintiff to attend his trip. It is also neither party’s fault that local, state and federal governments-imposed guidelines to help combat the spread of Covid-19.
  • There was no Force Majeure clause in the second contract to protect Defendants from liability in case an extraordinary event or circumstance. There is a provision in the email sent to Plaintiff on May 7, 2019, which states as follows: “As in our original policy you agreed to by booking the original reservation, the new dates will be firm, no changes once the change is made regardless of weather conditions.” Island Realty only protected itself against liability due to lack of performance as a result of weather conditions. The provision does not protect Island Realty against liability due to lack of performance as a result of the Covid-19 pandemic.
  • All along, Plaintiff never asked for a refund of any amount that he paid. He simply wanted to enjoy tie with some family members and friends at the cabin he had rented. That is still what he wants.
  • Defendants are clearly trying to get away with their contractual obligation to allow Plaintiff to use the cabin for a weekend. That would amount to miscarriage of justice against Plaintiff. This Honorable Court has authority to prevent that from happening.
  • In an email sent to Plaintiff on April 6, 2020, Christy explained to Plaintiff that a refund would not be possible as the funds were already paid to the owner of Island Realty. Plaintiff understands that and only wants to be allowed to rent the cabin using the consideration he paid earlier.
  • PRAYER FOR RELIEF

REASONS WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant him the following reliefs:

  1. An order of specific performance compelling Defendants to rent the cabin and facilities for the amount of consideration Plaintiff paid to Island Realty;
  2. Award Plaintiff punitive damages;
  3. Award Plaintiff pre and post judgment interests, costs of this suit and attorney fees as allowed by law;
  4. Award Plaintiff such equitable relief as may be appropriate under the circumstances; and
  5. Award Plaintiff such further relief as this Honorable Court deems necessary and proper.

Dated:

Respectfully Submitted,

______________________________

Willester Penn

Insert Address

Insert State and ZIP Code

Insert Phone Number

Insert Email

VERIFICATION

I, _____, being duly sworn depose and say that I am the _____ in the above entitled action, that I have read the foregoing _____ and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this the _____ day of ____________________, 2021.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

CERTIFICATE OF SERVICE

            I hereby certify that a true and correct copy of the foregoing document was sent on the (Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:

            (Name of Attorney), Attorney at Law

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