Christopher J. Fraino, Sr. v. Malachi S. Hull and Define Your Image, LLC

Opinion

CHRISTOPHER J. FRAINO, * NO. 2022-CA-0361 SR.

*

VERSUS COURT OF APPEAL

*

MALACHI S. HULL AND FOURTH CIRCUIT DEFINE YOUR IMAGE, LLC * STATE OF LOUISIANA

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APPEAL FROM

CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-03669, DIVISION “J” Honorable D. Nicole Sheppard, ******

Judge Sandra Cabrina Jenkins ******

(Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Rachael D. Johnson)

Robert G. Harvey, Sr. LAW OFFICE OF ROBERT G. HARVEY, SR., APLC 600 North Carrollton Avenue New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLEE

Jonathan D. Lewis Daniel E. Davillier Charles Ferrier Zimmer, II DAVILLER LAW GROUP, LLC 935 Gravier Street, Suite 1702 New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

LIMITED REHEARING GRANTED; RELIEF DENIED; ORIGINAL OPINION AFFIRMED

JANUARY 31, 2023

SCJ DLD RDJ We grant appellee, Christopher Fraino’s application for rehearing for the

limited purpose of addressing his argument that this Court made an egregious error

of law by reversing the trial court’s March 14, 2022 judgment, which granted his

motion for summary judgment and dismissed the appellant, Christopher J. Fraino,

Sr.’s reconventional demand with prejudice.

Mr. Fraino’s application for rehearing seeks reconsideration of this Court’s

December 29, 2022 opinion. Mr. Fraino argues that this Court’s “opinion guts the

[C]ity’s regulation and management of the equitable business opportunities

program.” Mr. Fraino further argues that this Court’s ruling violates the contract

between him and the City because the contract prohibits payment for solicitation.

In opposition to Mr. Fraino’s application, Mr. Hull argues that Mr. Fraino’s

assertion that this Court’s decision results in the allowance of a patently illegal

contract is meritless and the matter concerns whether a material issue of fact exists

as to the he and Mr. Fraino’s formation of a joint venture.

On rehearing, Mr. Fraino attempts to expand his motion for summary

judgment argument. Mr. Fraino attempts now to focus solely on the solicitation

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clause in the City’s contract when the basis of his argument in the January 7, 2022

motion for summary judgment was a lack of genuine issues of material fact as to

the formation of an oral joint partnership agreement between him and Mr. Hull and

that Mr. Hull was not qualified to serve as a DBE. Notwithstanding of the terms of

the City’s contract, which is not before this court on appeal, we found that genuine

issues of material fact exist as to whether there was a separate agreement between

Mr. Fraino and Mr. Hull to pursue a contract with the City or whether Mr. Hull

gratuitously assisted Mr. Fraino in obtaining the City contract. Accordingly, Mr.

Fraino fails to produce any legal basis to support his argument or warrant an

amendment to this Court’s original opinion.

For these reasons, we grant a limited rehearing, deny relief, and affirm our

original opinion.

LIMITED REHEARING GRANTED; RELIEF DENIED; ORIGINAL OPINION AFFIRMED