                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                August 29, 2006

                      ))))))))))))))))))))))))))         Charles R. Fulbruge III
                            No. 06-30223                         Clerk
                          Summary Calendar
                      ))))))))))))))))))))))))))

SHREVEPORT PLAZA, LLC,

                Plaintiff–Appellant,

     v.

DOLLAR TREE STORES, INC.,

                Defendant–Appellee.


           Appeal from the United States District Court
               for the Western District of Louisiana
                  District Court No. 5:05-CV-1516


Before SMITH, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Shreveport Plaza, LLC (“Shreveport

Plaza”) appeals the district court’s grant of summary judgment in

favor of Defendant-Appellee Dollar Tree Stores, Inc. (“Dollar

Tree”).   Dollar Tree signed a lease, which is dated November 15,

1999, with Shreveport Plaza,1 to rent the space for five years.

The lease stated that the first five year term would


     *
      Pursuant to 5th Circuit Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Circuit
Rule 47.5.4.
     1
      The lease was signed by Shreveport Plaza Associates, LLC,
Shreveport Plaza’s predecessor-in-title.

                                 -1-
automatically renew, unless Dollar Tree provided written notice

at least six months in advance of the end of the term that it did

not wish to renew the lease.   In addition, the lease stated that

the parties should execute a written instrument stipulating the

commencement date and expiration date of the original term of the

lease.2   Thus, on October 31, 2000, Dollar Tree and Shreveport

Plaza Associates, LLC, signed a Lease Commencement Certificate,

which stated that the expiration of the first five year term was

October 31, 2005.3   On April 5, 2005, more than six months prior

to the expiration of the first five year term, Dollar Tree

exercised its right not to renew the lease in a written notice to

Shreveport Plaza (“notice”).

     Shreveport Plaza argues that Dollar Tree’s notice was

untimely.   Specifically, Shreveport contends that despite the

clear, unambiguous language of the Lease Commencement

Certificate, the lease actually terminated on September 30, 2005;

in that case, Dollar Tree’s notice would have been too late.      In

support of its contention, Shreveport Plaza points to a Revised

Lease Commencement Certificate (“revised certificate”), dated

     2
      Although the lease sets out a formula for determining the
commencement date of the original term—based on the date of
delivery and the store opening date—the lease also directs: “At
the time the Commencement Date is established, upon the request
of the Landlord, the parties will promptly execute a written
instrument stipulating the Commencement Date and Expiration Date
of the Term of this Lease.” (emphasis added).
     3
      The October 31, 2000 certificate states, “The expiration
date of the original term is 10/31/2005.”

                                -2-
April 14, 2005.       This revised certificate indicates that the

expiration date of the original term is September 30, 2005 or

September 25, 2005.4      Significantly, the revised certificate is

dated subsequent to Dollar Tree’s notice of April 5, 2005.

       We review the district court’s grant of summary judgment de

novo.      Austin v. Will-Burt Co., 361 F.3d 862, 866 (5th Cir.

2004).

       Dollar Tree’s April 5, 2005 notice, stating that it would

not exercise its option to lease the property at issue for an

additional five year term, was timely.        “[A] contract is the law

between the parties and [] they are bound by their agreements.”

Texaco Inc. v. Vermillion Parish Sch. Bd., 152 So. 2d 541, 547

(La. 1963).        “The intention of the parties is of paramount

importance. . . .”       Id. at 548.    When the language of the

contract is clear and explicit, we look to it to determine the

parties’ intent, without the aid of extrinsic evidence.            Id. at

547.       The unambiguous agreement of the parties, expressed in the

Lease Commencement Certificate dated October 31, 2000, states

that the original lease term expired on October 31, 2005.           Based

on that termination date, Dollar Tree’s notice was timely.

       Shreveport Plaza argues, however, that the October 31, 2005

termination date, expressed in the October 31, 2000 Lease


       4
      But for the October 31, 2000 Lease Commencement
Certificate, the lease expiration date would have been September
30, 2005. See discussion supra, note 2.

                                       -3-
Commencement Certificate, was an error.    Assuming arguendo that a

mistake was made, Shreveport Plaza is, in effect, asking this

court to reform the Lease Commencement Certificate.    “A contract

may be reformed as an equitable remedy, in order to correct

mistakes in a written instrument” if a mutual mistake has

occurred.   Fireman’s Fund Ins. Co. v. Bulliard Farm, Inc., 915

So. 2d 1014, 1017 (La. Ct. App. 2005).    “A mutual mistake is a

mistake shared by both parties to the instrument at the time of

reducing their agreement to writing, and the mistake is mutual if

the contract has been written in terms which violate the

understanding of both parties.   Id. (emphasis added).    Here, the

burden is on Shreveport Plaza to establish by clear and

convincing evidence that a mutual mistake occurred.      See id.

     Shreveport Plaza has not presented any evidence to indicate

that the October 31, 2005 termination date was a mistake, shared

by both parties, at the time that the Lease Commencement

Certificate was reduced to writing.    The revised certificate was

crafted nearly five years after the Lease Commencement

Certificate and did not exist at the time that Dollar Tree gave

notice to Shreveport Plaza.   The Lease Commencement Certificate

clearly states: “This [certificate] will confirm that the above

information is correct.”   The “above information” announces that,

“[t]he expiration date of the original term is 10/31/2005.”        The

original term expired on October 31, 2005, and Dollar Tree’s


                                 -4-
notice was timely.

     Shreveport Plaza contends, however, that even if there was

no mistake in the original Lease Commencement Certificate, the

revised certificate modified the expiration date of the original

term to September 30, 2005.   Again, assuming for the sake of

argument that the revised certificate effectively modified the

expiration date of the term, Dollar Tree’s notice was timely.

The revised certificate was not in existence when Dollar Tree

gave its notice.   Under Louisiana law, at the time Dollar Tree

gave its notice, the original Lease Commencement

Certificate—which announced the expiration of the initial lease

term as October 31, 2005—was a “promise” upon which Dollar Tree

relied to its detriment.5

          The doctrine of detrimental reliance is designed to
     prevent injustice by barring a party from taking a
     position contrary to his prior acts, admissions,
     representations, or silence. To establish detrimental
     reliance, a party must prove three elements by a
     preponderance of the evidence: (1) a representation by
     conduct or word; (2) justifiable reliance; and (3) a
     change in position to one’s detriment because of the
     reliance.   Significantly, to prevail on a detrimental
     reliance claim, Louisiana law does not require proof of

     5
       In Louisiana:
           A party may be obligated by a promise when he knew
      or should have known that the promise would induce the
      other party to rely on it to his detriment and the other
      party was reasonable in so relying. Recovery may be
      limited to the expenses incurred or the damages suffered
      as a result of the promisee’s reliance on the promise.
      Reliance on a gratuitous promise made without required
      formalities is not reasonable.
LA. CIV. CODE ANN. art 1967.


                                -5-
     a formal, valid, and enforceable contract.

Suire v. Lafayette City-Parish Consol. Gov’t, 907 So. 2d 37, 59

(La. 2005) (internal quotations and citations omitted).    Dollar

Tree relied on Shreveport Plaza’s written promise that the

expiration of the initial five year term was on October 31, 2005

by giving notice on April 5, 2005.    Shreveport Plaza cannot

change its position after Dollar Tree has relied to its

detriment.

     Shreveport Plaza also claims that summary judgement was

improper because issues of fact remain.    However, because the

remaining fact issues relate to the validity of the revised

certificate, which is not dispositive of this controversy, no

remaining fact issue is material to the resolution of this

dispute.   See Austin, 361 F.3d at 866 (pointing out that summary

judgment is proper if “the record indicates that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.”) (emphasis added).

AFFIRM.




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