STATE OF LOUISIANA Iby COURT OF APPEAL
FIRST CIRCUIT
2021 CA 0182
ANH TUYET TRAN
VERSUS
DRINKABLE AIR, INC., DRINKABLE AIR TECHNOLOGIES, LLC and DRINKABLE AIR, LLC
Judgment rendered:
On Appeal from the Twenty -First Judicial District Court In and for the Parish of Livingston, State of Louisiana No. 166440, Division B
The Honorable Charlotte Hughes Foster, Judge Presiding
Connie P. Trieu Attorneys for Plaintiff/Appellant Brandon J. Melerine Anh Tuyet Tran Paul F. Lambert
Zachary T. Lamachio Lee P. Sharrock Gretna, Louisiana
David M. Cohn Attorneys for Defendant/ Appellee D. Brian Cohn Drinkable Air Technologies, LLC
Bartley Paul Bourgeois Allyson S. Jarreau Baton Rouge, Louisiana
Anthony Todd Caruso Attorney for Defendant/ Appellee Denham Springs, Louisiana Drinkable Air, LLC
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.
The plaintiff appeals the trial court' s judgment granting a peremptory
exception raising the objection of no cause of action and dismissing her claim with
prejudice. For the following reasons, we vacate the trial court' s judgment and
remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
Drinkable Air, Inc. ( DAI) executed three promissory notes payable to Sach
Dinh Nguyen in 2011. The promissory notes consisted of the March 7, 2011 note
in the amount of $30, 000. 00 ( Note # 1), the March 18, 2011 note in the amount of
20, 000. 00 ( Note # 2), and the April 8, 2011 note in the amount of $20, 000. 00
Note # 3). In November 2016, Sach Dinh Nguyen executed an " Assignment of
Funds Receivable and Shares," whereby he agreed to assign and transfer all funds
receivable from DAI, and all rights to file suit, compromise, settle, and collect said
funds to his wife, Anh Tuyet Tran ( the plaintiff).
On March 6, 2020, the plaintiff filed suit against the defendants, DAI,
Drinkable Air Technologies, LLC ( Drinkable Air Technologies), and Drinkable
Air, LLC ( DALLC), alleging that sums were due to Sach Dinh Nguyen on the
three promissory notes executed by DAI. The plaintiff alleged that Drinkable Air
Technologies was the successor to DAI.' The plaintiff further alleged that DAI,
Drinkable Air Technologies, and DALLC were liable solidarily for all amounts
due on the three promissory notes. Therefore, the plaintiff prayed for unpaid
interest in the amount of $1, 965. 40 on Note # 1, $ 16, 061. 10 consisting of $6, 000. 00
in principal and $ 9,205. 94 in interest on Note # 2, and $ 39, 708. 92 consisting of
20, 000. 00 in principal and $ 19, 708. 92 in interest on Note # 3. The plaintiff
further prayed for attorney' s fees and costs.
1 DAI is a Florida corporation with its principle place of business in Florida. Drinkable Air Technologies is domiciled in Florida and New York. DALLC is a Louisiana limited liability company.
2 In response, Drinkable Air Technologies filed several exceptions including a
dilatory exception raising the objection of vagueness, peremptory exception raising
the objections of prescription and no cause of action, and a declinatory exception
raising the objection of lack of personal jurisdiction. On June 1, 2020, the trial
court held a hearing on the exceptions and granted the declinatory exception
raising the objection of lack of personal jurisdiction, peremptory exception raising
the objection of no cause of action, and dilatory exception raising the objection of
vagueness. The trial court denied the peremptory exception raising the objection
of prescription. The trial court further allowed the plaintiff thirty days to amend
her petition to cure the defects or her suit would be dismissed.
On June 17, 2020, DALLC filed an answer, affirmative defenses, a
peremptory exception raising the objections of no cause of action and no right of
action, and a request for sanctions for court costs and attorney' s fees. DALLC
asserted that it was not a party to the three promissory notes and did not receive
any funds from the loans made in connection with the promissory notes.
Therefore, DALLC argued that the plaintiff's case should be dismissed because the
plaintiff failed to state a cause of action against it.
On June 30, 2020, the plaintiff filed an amended petition asserting similar
claims that were made in her original petition. In response to the plaintiff's
amended petition, Drinkable Air Technologies filed several exceptions, including a
declinatory exception raising the objection of lack of personal jurisdiction, a
peremptory exception raising the objection of no cause of action, and a dilatory
exception raising the objection of vagueness. Drinkable Air Technologies also
filed a motion for sanctions against the plaintiff " for the filing of this improper
Amended Petition that [ was] filed for the sole purpose of harassment."
DALLC also responded to the plaintiff's amended petition by filing an
answer, affirmative defenses, and a peremptory exception raising the objections of
3 no cause of action and no right of action. DALLC also requested sanctions, court
costs, and attorney' s fees.
On October 13, 2020, the trial court held a hearing on Drinkable Air
Technologies' exceptions. After hearing arguments from the parties, the trial court
granted Drinkable Air Technologies' peremptory exception raising the objection of
no cause of action and found as moot the declinatory exception raising the
objection of lack of personal jurisdiction and the dilatory exception raising the
objection of vagueness. The trial court denied Drinkable Air Technologies'
motion for sanctions. A judgment was signed on November 2, 2020 in accordance
with the trial court' s oral reasons. The plaintiff subsequently appealed.
DISCUSSION
In this case, Drinkable Air Technologies filed a peremptory exception
raising the objection of no cause of action, a declinatory exception raising the
objection of lack of personal jurisdiction, and a dilatory exception raising the
objection of vagueness. Thus, Drinkable Air Technologies properly brought its
jurisdiction claim before the trial court. If the trial court does not have personal
jurisdiction over Drinkable Air Technologies, it does not have the legal power and
authority to render a judgment for or against a party. See La. C. C. P. art. 6. The
record reveals that the trial court declined to rule on Drinkable Air Technologies'
objection to personal jurisdiction and to decide whether the trial court had personal
jurisdiction over Drinkable Air Technologies. Instead, the trial court ruled on the
merits of Drinkable Air Technologies' objection of no cause of action.
A trial court should first rule upon a declinatory exception raising the
objection of lack of personal jurisdiction before ruling upon a peremptory
exception filed before or at the same time. See Bennett v. Giarrusso, 583 So. 2d
6077 609 ( La. App. 4 Cir. 1991); Favorite v. Alton Ochsner Medical
Foundation, 537 So. 2d 722, 723 ( La. App. 4 Cir. 1988), In re Cooper, 57 So. 2d
11 775, 776 ( La. App. 1 Cir. 1952). In Bennett, 583 So. 2d at 609, the Fourth Circuit
stated the following:
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STATE OF LOUISIANA Iby COURT OF APPEAL
FIRST CIRCUIT
2021 CA 0182
ANH TUYET TRAN
VERSUS
DRINKABLE AIR, INC., DRINKABLE AIR TECHNOLOGIES, LLC and DRINKABLE AIR, LLC
Judgment rendered:
On Appeal from the Twenty -First Judicial District Court In and for the Parish of Livingston, State of Louisiana No. 166440, Division B
The Honorable Charlotte Hughes Foster, Judge Presiding
Connie P. Trieu Attorneys for Plaintiff/Appellant Brandon J. Melerine Anh Tuyet Tran Paul F. Lambert
Zachary T. Lamachio Lee P. Sharrock Gretna, Louisiana
David M. Cohn Attorneys for Defendant/ Appellee D. Brian Cohn Drinkable Air Technologies, LLC
Bartley Paul Bourgeois Allyson S. Jarreau Baton Rouge, Louisiana
Anthony Todd Caruso Attorney for Defendant/ Appellee Denham Springs, Louisiana Drinkable Air, LLC
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.
The plaintiff appeals the trial court' s judgment granting a peremptory
exception raising the objection of no cause of action and dismissing her claim with
prejudice. For the following reasons, we vacate the trial court' s judgment and
remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
Drinkable Air, Inc. ( DAI) executed three promissory notes payable to Sach
Dinh Nguyen in 2011. The promissory notes consisted of the March 7, 2011 note
in the amount of $30, 000. 00 ( Note # 1), the March 18, 2011 note in the amount of
20, 000. 00 ( Note # 2), and the April 8, 2011 note in the amount of $20, 000. 00
Note # 3). In November 2016, Sach Dinh Nguyen executed an " Assignment of
Funds Receivable and Shares," whereby he agreed to assign and transfer all funds
receivable from DAI, and all rights to file suit, compromise, settle, and collect said
funds to his wife, Anh Tuyet Tran ( the plaintiff).
On March 6, 2020, the plaintiff filed suit against the defendants, DAI,
Drinkable Air Technologies, LLC ( Drinkable Air Technologies), and Drinkable
Air, LLC ( DALLC), alleging that sums were due to Sach Dinh Nguyen on the
three promissory notes executed by DAI. The plaintiff alleged that Drinkable Air
Technologies was the successor to DAI.' The plaintiff further alleged that DAI,
Drinkable Air Technologies, and DALLC were liable solidarily for all amounts
due on the three promissory notes. Therefore, the plaintiff prayed for unpaid
interest in the amount of $1, 965. 40 on Note # 1, $ 16, 061. 10 consisting of $6, 000. 00
in principal and $ 9,205. 94 in interest on Note # 2, and $ 39, 708. 92 consisting of
20, 000. 00 in principal and $ 19, 708. 92 in interest on Note # 3. The plaintiff
further prayed for attorney' s fees and costs.
1 DAI is a Florida corporation with its principle place of business in Florida. Drinkable Air Technologies is domiciled in Florida and New York. DALLC is a Louisiana limited liability company.
2 In response, Drinkable Air Technologies filed several exceptions including a
dilatory exception raising the objection of vagueness, peremptory exception raising
the objections of prescription and no cause of action, and a declinatory exception
raising the objection of lack of personal jurisdiction. On June 1, 2020, the trial
court held a hearing on the exceptions and granted the declinatory exception
raising the objection of lack of personal jurisdiction, peremptory exception raising
the objection of no cause of action, and dilatory exception raising the objection of
vagueness. The trial court denied the peremptory exception raising the objection
of prescription. The trial court further allowed the plaintiff thirty days to amend
her petition to cure the defects or her suit would be dismissed.
On June 17, 2020, DALLC filed an answer, affirmative defenses, a
peremptory exception raising the objections of no cause of action and no right of
action, and a request for sanctions for court costs and attorney' s fees. DALLC
asserted that it was not a party to the three promissory notes and did not receive
any funds from the loans made in connection with the promissory notes.
Therefore, DALLC argued that the plaintiff's case should be dismissed because the
plaintiff failed to state a cause of action against it.
On June 30, 2020, the plaintiff filed an amended petition asserting similar
claims that were made in her original petition. In response to the plaintiff's
amended petition, Drinkable Air Technologies filed several exceptions, including a
declinatory exception raising the objection of lack of personal jurisdiction, a
peremptory exception raising the objection of no cause of action, and a dilatory
exception raising the objection of vagueness. Drinkable Air Technologies also
filed a motion for sanctions against the plaintiff " for the filing of this improper
Amended Petition that [ was] filed for the sole purpose of harassment."
DALLC also responded to the plaintiff's amended petition by filing an
answer, affirmative defenses, and a peremptory exception raising the objections of
3 no cause of action and no right of action. DALLC also requested sanctions, court
costs, and attorney' s fees.
On October 13, 2020, the trial court held a hearing on Drinkable Air
Technologies' exceptions. After hearing arguments from the parties, the trial court
granted Drinkable Air Technologies' peremptory exception raising the objection of
no cause of action and found as moot the declinatory exception raising the
objection of lack of personal jurisdiction and the dilatory exception raising the
objection of vagueness. The trial court denied Drinkable Air Technologies'
motion for sanctions. A judgment was signed on November 2, 2020 in accordance
with the trial court' s oral reasons. The plaintiff subsequently appealed.
DISCUSSION
In this case, Drinkable Air Technologies filed a peremptory exception
raising the objection of no cause of action, a declinatory exception raising the
objection of lack of personal jurisdiction, and a dilatory exception raising the
objection of vagueness. Thus, Drinkable Air Technologies properly brought its
jurisdiction claim before the trial court. If the trial court does not have personal
jurisdiction over Drinkable Air Technologies, it does not have the legal power and
authority to render a judgment for or against a party. See La. C. C. P. art. 6. The
record reveals that the trial court declined to rule on Drinkable Air Technologies'
objection to personal jurisdiction and to decide whether the trial court had personal
jurisdiction over Drinkable Air Technologies. Instead, the trial court ruled on the
merits of Drinkable Air Technologies' objection of no cause of action.
A trial court should first rule upon a declinatory exception raising the
objection of lack of personal jurisdiction before ruling upon a peremptory
exception filed before or at the same time. See Bennett v. Giarrusso, 583 So. 2d
6077 609 ( La. App. 4 Cir. 1991); Favorite v. Alton Ochsner Medical
Foundation, 537 So. 2d 722, 723 ( La. App. 4 Cir. 1988), In re Cooper, 57 So. 2d
11 775, 776 ( La. App. 1 Cir. 1952). In Bennett, 583 So. 2d at 609, the Fourth Circuit
stated the following:
Prior to 1983, it was clear that the Code of Civil Procedure and the jurisprudence contemplated that those exceptions to the jurisdiction of the court be disposed of before consideration of peremptory exceptions, which function is to have the plaintiff' s action declared legally nonexistent or barred by the effect of law. La. C. C. P. art. 923. The sole purpose of the 1983 amendments to La. C. C. P. arts. 7
and 928 was to make the pleading of exceptions simpler and more efficient by allowing the defendant to file all of his exceptions together. La. C. C. P. art. 928, Official Revision Comment ( f). The aim was to simplify pleading of the exceptions, not affect their disposition. There is no indication that it was ever intended that a threshold declinatory exception to the court' s jurisdiction, filed along with a peremptory exception by virtue of the amendment, was to be bypassed by a trial court more inclined to rule on the peremptory exception. ( Internal citation omitted).
Only if the trial court finds that the court has personal jurisdiction over Drinkable
Air Technologies does the court have the legal power and authority to consider the
peremptory exception raising the objection of no cause of action. See Favorite,
537 So. 2d at 723.
Accordingly, we find that the trial court erred in ruling that Drinkable Air
Technologies' declinatory exception raising the objection of lack of personal
jurisdiction was moot, and in ruling on its peremptory exception raising the
objection of no cause of action prior to ruling on the merits of the objection of
jurisdiction. See Schexnayder v. Gish, 2006- 579 ( La. App. 5 Cir. 12/ 27/ 06), 948
So. 2d 313, 314. Thus, we vacate the judgment of the trial court and remand this
case to the trial court for further proceedings.
CONCLUSION
For the foregoing reasons, the trial court' s November 2, 2020 judgment is
vacated and this case is remanded to the trial court for further proceedings. Costs
of this appeal are assessed equally to the parties.
VACATED AND REMANDED.
Wi