Diamond D Property Investors, LLC v. TB Industries, LLC, Francis Fornier, Brian Heyse, and Heype Properties, LLC

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

DIAMOND D PROPERTY NO. 2019 CW 0997 INVESTORS, LLC

VERSUS Page 1 of 2

TB INDUSTRIES LLC, FRANCIS FORNIER, BRIAN HEYSE, AND DEC 17 2019 HEYPE PROPERTIES, LLC

In Re: Diamond D Property Investors, LLC, applying for

supervisory writs, 21st Judicial District Court, Parish of Livingston, No. 158471.

BEFORE: McCLENDON, WELCH, HOLDRIDGE, CHUTZ, AND LANIER, JJ.

WRIT GRANTED. Those portions of the trial court' s December 18, 2018 judgment granting the exception of no cause of action

as to the claim of contractor misappropriation, privilege

against immovable property and as against the owner of the

property, and piercing the corporate veil are hereby reversed.

Generally, an exception of no cause of action should not be maintained in part and, if there are two or more theories of

recovery that arise out of the operative facts of a single

transaction or occurrence, a partial judgment on an exception of no cause of action should not be rendered to dismiss a theory of recovery. Based on our de novo review of relator' s petition, we

find that the claims against defendants arise out of the same

operative facts of a single transaction or occurrence. As such, the trial court improperly sustained defendants' partial

objection of no cause of action, thereby dismissing certain

theories of recovery. The exception of no cause of action is hereby denied. See Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 615 So. 2d 1234 ( La. 1993).

That portion of the trial court' s December 18, 2018 judgment sustaining the exception of vagueness as to the claim

of unfair trade practices is likewise reversed. Relator' s petition fairly informs defendants of the nature of that claim

and includes sufficient particulars to enable defendants to prepare their defense. See Thomas v. Sonic, 2006- 0014 ( La. App. 1st Cir. 11/ 3/ 06), 950 So. 2d 822, 824- 825. The exception of

vagueness as to the trade is unfair practices claim hereby

denied.

While we find no error in that portion of the trial court' s December 18, 2018 judgment the denying general exception as to vagueness of the entire petition, we reverse the portion of the judgment that denied the exception without prejudice to allow

defendants to re -urge a similar claim as this litigation progresses. The trial court has no authority to reserve such

exception, which must be filed in accordance with La. Code Civ. P. arts. 926( A) and 928.

PMc

JEW WRC WIL

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

No. 2019 CW 0997 Page 2 of 2

Holdridge, J., concurs in part and dissents in part. I agree with the majority' s actions on the exceptions of

vagueness. I disagree, however, with the majority' s denial of

the exception of no cause of action as to the claim of

contractor misappropriation, privilege against immovable property and as against the owner of the property, and piercing the corporate veil. I think the majority is in error in not allowing a partial exception of no cause of action in this case. It is true that, prior to 1997, the cases did not allow a

judgment granting only a partial exception of no cause of

action.

See Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So. 2d 1234 ( La. 1993). However, in 1997, the legislature authorized a partial judgment that " sustains an

exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party." La. Code Civ. P. art. 1915( B)( 1). " This amendment ... authorizes a

judgment granting a partial exception of no cause of action;

importantly, this amendment provides certainty as to the immediate appealability of such a judgment." Frank L. Maraist, Louisiana Civil Law Treatise: Civil Procedure, Vol. I, § 6. 7, pp. 172- 173 ( 2d ed. 2008).

COURT OF APPEAL, FIRST CIRCUIT

D PUTY LE OF COURT FOR THE COURT