DePodesta v. Breaux

116 So. 3d 1017, 2012 La.App. 4 Cir. 1594, 2013 WL 2353815, 2013 La. App. LEXIS 1082
CourtLouisiana Court of Appeal
DecidedMay 29, 2013
DocketNo. 2012-CA-1594
StatusPublished
Cited by3 cases

This text of 116 So. 3d 1017 (DePodesta v. Breaux) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DePodesta v. Breaux, 116 So. 3d 1017, 2012 La.App. 4 Cir. 1594, 2013 WL 2353815, 2013 La. App. LEXIS 1082 (La. Ct. App. 2013).

Opinion

JAMES F. McKAY III, Chief Judge.

11Defendani/appellant, Dail Breaux (“Breaux”), appeals the trial court’s judgment, decreeing that plaintiff/appellee, Arthur DePodesta (“DePodesta”), did not sell his sixty percent ownership interest in La-kart Food Services, L.L.C. (“Lakart”) to Breaux. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

DePodesta created Lakart in 2000, and began operating the kitchen at Cooter Brown’s, a New Orleans tavern. In October 2005, DePodesta brought Breaux into the business. Pursuant to a written agreement, Breaux was given a forty percent ownership interest in Lakart; DePodesta maintained a sixty percent ownership. Lakart operated successfully, generating an annual income and bonuses for both parties.

In August 2009, DePodesta and Breaux started a second business, Hurricane’s Kitchen, L.L.C. (“Hurricane’s”), to operate [1019]*1019the kitchen at a Metairie bar and grill. The new business was unsuccessful.

l2On August 24, 2009, Breaux had a friend draft a document (“Document”), which stated that DePodesta transferred his entire sixty percent ownership interest in Lakart to Breaux for $30,000.00. The Document, which is purportedly signed by DePodesta, indicates that the monetary consideration for the transfer was paid in full. Although the Document is signed by a notary and two witnesses, Breaux has acknowledged that these signatories were not present when Breaux and DePodesta signed the document. DePodesta denies signing the Document.

On August 27, 2009, Breaux recorded the Document in the Notarial Archives of Orleans Parish. Breaux also presented the Document to the Omni Bank where Lakart maintained its business account. Pursuant to the Document, DePodesta’s name was removed from the Omni account. DePodesta claims he had no knowledge of the Document until February 2010, when the Omni bank denied him access to La-kart’s account. DePodesta was also removed from Lakart’s payroll at that time.1

DePodesta filed a petition for fraud and rule to show cause for declaratory relief. The action alleges that Breaux forged or had forged DePodesta’s signature on the Document. DePodesta also sought to have the Document declared null and his ownership interest in Lakart reinstated.

This matter proceeded to a bench trial on July 11, 2012, and July 16, 2012. Judgment was rendered in favor of DePodesta on July 27, 2012, finding that DePodesta never sold or intended to sell his sixty percent ownership interest in |sLakart to Breaux, and declaring the Document null. The judgment is silent as to a finding of fraud on the part of Breaux.

At trial, counsel for DePodesta stipulated to the two handwriting experts’ reports, which stated that the signature on the Document appeared to be DePodesta’s. DePodesta acknowledged that the signature looked like his. However, he testified that he did not remember signing the Document, and would not have made such an agreement. DePodesta stated that he would never have sold his interest in La-kart for $30,000.00, explaining that his sixty percent interest was worth much more than that amount. DePodesta also denied receiving the $30,000.00 consideration, which the Document referenced.

Breaux testified at trial that DePodesta signed the Document in front of him, but admitted that the notary and two witnesses signed at a later date. When asked about the consideration for the transfer, Breaux testified that he did not actually pay DePodesta $30,000.00, but paid that amount in startup costs for Hurricane’s. In support of that assertion, Breaux introduced checks drawn on Lakart’s account for services and purchases in connection with Hurricane’s. However, it is important to note here that the checks relied upon by Breaux were dated after the execution of the Document.

DePodesta denied that the payments made for Hurricane’s from Lakart’s account represented consideration for a sale of his interest in Lakart. DePodesta testified that the parties agreed to a 50/50 split in Hurricane’s and agreed that the costs to get Hurricane’s running would be financed through Lakart.

14Breaux denied that he had any ownership interest in Hurricane’s. DePodesta [1020]*1020countered this assertion by introducing Breaux’s 2009 income tax return, wherein he claimed a business loss from Hurricane’s. DePodesta also introduced the initial report and the articles of incorporation for Hurricane’s, which were notarized and signed by Breaux, listing Breaux as the registered agent and as a manager/member of Hurricane’s.

As an explanation for DePodesta’s motivation in selling Lakart, Breaux claimed that DePodesta was unhappy with the business and wanted out. On that subject, Breaux called Lakart employee, John Clements (“Clements”), as a witness. When asked if he ever heard DePodesta say that he wanted to get out of Lakart, Clements stated that “I don’t know about Lakart, I know he said he wanted to get out of the city, that entails getting out of Lakart, then I guess yes.” Otherwise, Clements had nothing else to say regarding DePodesta’s plans.

Following the testimony and the presentation of evidence, judgment was rendered in favor of DePodesta. Written reasons were not provided. However, a reading of the transcript of the July 16, 2012 proceedings reveals that the trial judge stated that she did not believe or trust Breaux. The trial judge also opined that while fraud was not proven, Breaux “did some underhanded things” and that “there was no intent by Mr. DePodesta to relinquish any and all rights that he had in Lakart for the sum of 30 thousand previously received. That was borne out clearly by the facts.... ” Breaux has timely appealed the trial court’s judgment.

STANDARD OF REVIEW

|sWhen a trial court’s factual findings are based on the credibility of witness testimony, as in the case sub judice, the appellate court must give great deference to the fact finder’s decision to credit a witness’s testimony. Cottingim v. Vliet, 2008-1263, p. 4 (La.App. 4 Cir. 8/12/09), 19 So.3d 26, 28, quoting Watters v. Dep’t of Soc. Sens., 2008-0977, p. 8 (La.App. 4 Cir. 6/17/09), 15 So.3d 1128,1142. In reviewing those findings, an appellate court must review factual determinations made by the trial court using the manifest error or clearly wrong standard. Mayeux v. Rocky & Carlo, Inc., 2007-0687, p. 2 (La.App. 4 Cir. 4/23/08), 984 So.2d 177, 179.

DISCUSSION

Appellant’s assignments of error:

Breaux submits that the trial court failed to follow the established rule of law that a person is responsible for what he or she signs. Thus, he contends that it was manifest error not to uphold the sale from DePodesta to Breaux where Breaux fulfilled his contractual obligation.2

It is well established that a person who signs a written contract is presumed to know its contents and cannot avoid its obligations by contending he did not read the document, or that it was not explained, or that he did not understand it, barring misrepresentation, fraud, or violence. Jeansonne v. Attorney’s Liability Assur. Soc., 2003-1985, p. 7 (La.App. 4 Cir. 12/15/04), 891 So.2d 721, 726. See also Tweedel v. Brasseaux, 433 So.2d 133, 137 (La.1983) (stating: “The presumption is [1021]*1021that parties are aware of the contents of writings to which they have affixed their signatures ...

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116 So. 3d 1017, 2012 La.App. 4 Cir. 1594, 2013 WL 2353815, 2013 La. App. LEXIS 1082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/depodesta-v-breaux-lactapp-2013.