Bozo’s restaurant owners sue over alleged breach of contract

By Chelsea Partington | Dec 23, 2014

NEW ORLEANS – Two St. Tammany LLC members are suing shareholders of Bozo's Inc. due to alleged breach of a commercial lease and breach of a construction contract.

Bozo's LLC, Mark Fayard and Susan Martinsen Fayard filed suit against Bozo Vodanovich Inc., Chris Vodanovich, Bernadine Vodanovich and the estate of Vincenza Turlich in the Orleans Parish Civil District Court on Sept. 29.

The Fayards claim that Bozo's, Inc. has operated as a successful restaurant at 3117 21st Street in Metairie since 1928. According to the suit, Bozo's Inc. and Bozo's LLC entered into an agreement to buy and sell business on Oct. 20, 2008.

The Fayards claim that their agreement with Bozo's Inc. did not include the building that housed the restaurant. Instead, the LLC members allegedly chose to enter into a commercial lease effective from April 1, 2009 until Oct. 21, 2013.

The petition states that the commercial lease provided a right of first refusal, that the Fayards were to be given the first opportunity to buy the property in the event that a third party took interest in the Bozo's restaurant building.

Bozo's LLC asserts that Bozo's Inc. filed a rule to evict rather than honoring the right of first refusal. The Fayards allege that they contested the rule to evict, and claimed to have complied with their lease.

Bozo's LLC and Bozo's Inc. settled the rule to evict on May 9, 2013, before any judgment was rendered.

Ed McIntyre, the owner of Mr. Ed's Deli, began renovations at 3117 21st Street in Metairie immediately after Bozo's LLC and Bozo's Inc. settled the rule to evict, says the suit. The Fayards claim they eventually learned that McIntyre had purchased the building for $525,000 so he could open a new restaurant there.

The Fayards assert that Bozo's, Inc. received an offer to buy the Metairie property from McIntyre during the term of the commercial lease. Bozo's Inc. allegedly breached the commercial lease when it failed to give Bozo's LLC notice regarding their opportunity to buy the property for $525,000.

Bozo's, LLC claims it obtained an appraisal of the Metairie building, which was valued at $750,000. The plaintiffs argue that they have sustained financial damages of $225,000, or the difference between the sale price and appraised value of the building.

Furthermore, the Fayards allege they have sustained damages because they are unable to operate Bozo's Restaurant from the same successful location it has occupied for many years. Mark and Susan Fayard state that they have lost the salaries normally paid to owners who work in the operation of the business.

Mark Fayard also alleges that he entered into a verbal agreement with Bozo's Inc. as Fayard Construction, in which he agreed to perform certain repairs to 3117 21st Street in Metairie. He claims that he sent an invoice to Bozo's Inc. on May 7, 2006 for $34,887 accounting for the work he had consented to completing. Fayard also asserts that Bozo's Inc. has only paid $10,000 of the bill.

The defendant is accused of two counts of breach of contract, breach of a commercial lease and breach of a construction contract.

The plaintiffs are seeking more than $24,887 in damages to include funds contributed for repairs after Hurricane Katrina, lost wages following the sale of the Metairie premises, monies lost due to the building's sale below its appraisal value, court costs and legal interest.

Bozo's LLC, Mark Fayard, and Susan Martinsen Fayard are represented by David J. Schexnaydre of Pajares & Shexnaydre LLC.

The case has been assigned to District H Pro Tempore Judge Lynn Luker.

Case no. 2014-09498.

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