Gulf Engineering Co. v. Kuhn

209 So. 3d 1029, 16 La.App. 5 Cir. 425, 2016 La. App. LEXIS 2322
CourtLouisiana Court of Appeal
DecidedDecember 21, 2016
DocketNO. 16-CA-425
StatusPublished

This text of 209 So. 3d 1029 (Gulf Engineering Co. v. Kuhn) 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
Gulf Engineering Co. v. Kuhn, 209 So. 3d 1029, 16 La.App. 5 Cir. 425, 2016 La. App. LEXIS 2322 (La. Ct. App. 2016).

Opinion

WINDHORST, J.

| Plaintiff, Gulf Engineering Company, LLC (“Gulf’), appeals from a judgment granting an exception of no cause of action, dismissing its suit against defendant, Allison Kuhn, with prejudice. For the reasons that follow, we affirm.

Gulf instituted these proceedings by filing its “Petition for Intentional Interference with Contract,” in which it alleged that it had a contract with The Dow Chemical Company (“Dow”) to inspect, verify, track and non-destructively test equipment at various Dow facilities in Louisiana, including Dow’s facility in St. Charles Parish. On April 1, 2014, Gulfs contract was renewed for an additional four years, for a term to end on September 30, 2018. The contract, referred to by Gulf as the “agreement,” further had provisions for either party to terminate the contract under certain provisions.

Under the terms of the agreement, Gulf utilized between 50 and 117 employees to perform its duties at the St. Charles Parish Dow facility. Dow appointed its employee, Troy Barbier, to oversee and supervise Gulfs activities, and Mr. Barbier was Dow’s “direct point of contact” with Gulf.

In its petition, Gulf alleges that Dow persistently failed to timely or appropriately schedule various third party contractors needed prior to Gulfs performance of its duties, causing a significant backlog of required regulatory inspections and testing at the Dow facilities, including the St. Charles Parish facility. Dow assigned its employee, Ms. Kuhn, to more efficiently organize the third party assignments prior to the Gulf assignments, and to address [1031]*1031other deficiencies. However, Mr. Barbier remained Dow’s representative and contract supervisor assigned to Gulf.

Gulf further alleges that Ms. Kuhn- was unable to cure the deficiencies, and she began to interfere with Gulfs relationship with Dow, including dictating Gulfs relationships with its own employees, allowing third party contractors to 1 ¡.solicit Gulf employees contrary to Dow policy, sharing confidential Gulf information and misinformation, which caused dissention and distrust among Gulf staff and raised Dow’s concerns regarding Gulfs ability to perform.

Gulf contends that five months after its contract was renewed, Ms. Kuhn informed Gulf employees that Gulfs contract was terminated and that should they wish to remain on site, they would have to begin immediate employment with a new contractor hired to replace Gulf. Gulf contacted Mr. Barbier, who advised Gulf that he was unaware of Ms. Kuhn’s actions. Within days, Mr. Barbier informed Gulf that Dow was exercising its rights under the agreement to terminate the contract with a 90-day notice period. However, Ms. Kuhn ordered Gulf supervisory personnel to immediately vacate the premises. Ms. Kuhn informed Gulf that she considered that neither she nor Dow was bound by Mr. Barbier’s notice of 90 days.

Gulf charges that, as a result of these and other acts and omissions performed by Ms. Kuhn, it was forced to immediately discontinue its work for Dow, causing loss of revenue, separation under duress from over 100 of its employees, and loss of its entire non-destructive testing division. Gulf contends that these acts and omissions of Ms. Kuhn were “undertaken with malice and with the intent to make GULF’s obligations under the AGREEMENT more burdensome and/or impossible, and to induce a breach of the agreement between GULF and DOW.” Gulf further contended that “The acts - and omissions of KUHN served no legitimate business interest for DOW, were wholly unjustified, and were not performed in the belief that the same would accrue to the benefit of DOW.”

Ms. Kuhn filed an exception of no cause of action, alleging that a suit for intentional interference with a contract can only be maintained against a corporate officer, or someone who functions in .a manner similar to a corporate officer,, and that a,cause of action for tortious interference with a contract does not exist against |san employee of a corporation who is not a corporate officer. After a hearing, the trial court sustained Ms. Kuhn’s exception of no cause of action; however it allowed Gulf fifteen days to amend its petition. See La. C.C.P. art. 934.

Thereafter, Gulf filed a First Supplemental and Amending Petition, adding the following: '

I.
Plaintiff herein and hereby re-alleges and re-avers each and every allegation contained in its original Petition for Intentional Interference With Contracts as though re-alleged and re-pled herein in extenso.
II.-
Plaintiffs now add Paragraph 35a to the allegations contained in its original Petition for Intentional Interference With Contracts, to read as follows:
“Kuhn was therefore charged with the same duties, authority, and responsibilities as a corporate officer of Dow, which rendered her position completer ly indistinguishable from that of a corporate officer of Dow, which she effectively served as at all times pertinent hereto.
III.

[1032]*1032Plaintiffs now add Paragraph 35b to the allegations contained in its original Petition for Intentional Interference With Contracts, to read as follows:

“In the alternative, Kuhn was therefore charged with the same duties, authority, and responsibilities as a ‘corporate official’ of Dow as defined in 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 234 (La.1989), and which rendered her position completely indistinguishable from that of a corporate officer of Dow, which she effectively served as at all times pertinent hereto.”

IV.

Plaintiffs now add Paragraph 35c to the allegations contained in its original Petition for Intentional Interference With Contracts, to read as follows:

“Wielding the same duties, authority, and responsibilities as an officer and/or official of Dow, Kuhn’s actions and omissions cited hereinabove constituted a breach of the duties of such an officer and/or official, as recognized in 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989).”

| ¿Ms. Kuhn filed a second exception of no cause of action, which was also granted by the trial court, and Gulfs suit was dismissed with prejudice. In this appeal, Gulf argues that the trial court erred in finding that a cause of action for intentional interference with contracts as provided in 9 to 5 Fashions, Inc. v. Spurney was limited to defendants who are corporate officials, that the court erred in finding that the cause of action did not extend to defendants who were non-officer corporate “officials,” and that the court erred in finding that Ms. Kuhn was not a de facto corporate officer so that the cause of action for intentional interference with contracts should apply.

The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. Laguerre v. Mendez, 08-784 (La.App. 5 Cir. 02/25/09), 9 So.3d 896, 898. The exception is triable on the face of the papers, and for the purpose of determining the issues raised by the exception, the court must presume that all well-pleaded facts in the petition are true. Id. All reasonable inferences are made in favor of the non-moving party in determining whether the law affords any remedy to the plaintiff. Id.

In 9 to 5 Fashions, Inc. v.

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Bluebook (online)
209 So. 3d 1029, 16 La.App. 5 Cir. 425, 2016 La. App. LEXIS 2322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulf-engineering-co-v-kuhn-lactapp-2016.