Hurricane Fence Co. v. Jensen Metal Products, Inc.

119 So. 3d 683, 12 La.App. 5 Cir. 956, 2013 WL 2249246, 2013 La. App. LEXIS 1028
CourtLouisiana Court of Appeal
DecidedMay 23, 2013
DocketNo. 12-CA-956
StatusPublished
Cited by9 cases

This text of 119 So. 3d 683 (Hurricane Fence Co. v. Jensen Metal Products, Inc.) 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
Hurricane Fence Co. v. Jensen Metal Products, Inc., 119 So. 3d 683, 12 La.App. 5 Cir. 956, 2013 WL 2249246, 2013 La. App. LEXIS 1028 (La. Ct. App. 2013).

Opinion

SUSAN M. CHEHARDY, Chief Judge.

|2This is a suit for injunction, in which the plaintiffs appeal a judgment that granted exceptions of no cause of action, no right of action, and lack of subject matter jurisdiction, and dismissed the lawsuit. We affirm in part, reverse in part, and remand.

PROCEEDINGS BELOW

On April 29, 2011, Hurricane Fence Company, Inc. (“Hurricane”) and DHS Marketing, Inc. (“DHS”) filed suit in the 24th Judicial District Court, Jefferson Parish, Louisiana, for injunctive relief or, alternatively, for damages against Jensen Metal Products, Inc. d/b/a Real Flame (“Real Flame”).

The plaintiffs alleged that they are Louisiana corporations with their offices and places of domicile in Jefferson Parish and the defendant is a foreign corporation doing business in Jefferson Parish, which has an office and does business in Racine, Wisconsin. They alleged jurisdiction and venue are proper in the 24th Judicial District Court because the plaintiffs have offices and do business in the Parish of Jefferson and are dealers and/or distributors and/or sellers of Real Flame’s products, sold by the plaintiffs in or through the Parish of Jefferson. The petition was served on Real Flame under the Long Arm Statute.

|sThe plaintiffs alleged that for approximately five years they had been selling products manufactured by Real Flame (including fireplaces and fireplace gel) via eBay, Amazon, and/or other Internet outlets, with the sales made through advertisements and/or listings by the plaintiffs on eBay and Amazon. They asserted they had always maintained their accounts with the defendant in good standing and had complied with all the defendant’s requirements and procedures for the purchase and sale of the products. They also al[686]*686leged the defendant had instituted requirements for certain minimum advertised prices, which required its dealers, distributors, and/or sellers of its products to advertise the defendant’s products only at a specific price. They complained that the defendant had recently prohibited the plaintiffs from selling its products on eBay, and had closed the plaintiffs’ accounts.

The plaintiffs asserted that the defendant’s actions breached their free trade rights, restricted competition on the open market, and violated their rights of free commerce. They sought a preliminary injunction prohibiting the defendant from refusing to allow them to sell its products on eBay and from taking any actions to affect the accounts and/or ratings of the plaintiffs with eBay and Amazon. Alternatively, the plaintiffs averred they would suffer substantial losses of sales if not allowed to sell the defendant’s products on eBay, and requested they be granted damages for the loss of sales and income and other damages to be demonstrated at trial.

Real Flame raised various exceptions: first, the declinatory exceptions of insufficiency of citation and insufficiency of service of process; second, the dilatory exceptions of vagueness or ambiguity of the petition and improper cumulation of actions; and third, the peremptory exceptions of no cause of action, no right of action, and lack of subject matter jurisdiction.

_|/The trial court denied the declina-tory and dilatory exceptions. Those rulings are not before us on this appeal.1

In support of the peremptory exceptions, the defendant asserted that the plaintiffs did not allege any contractual obligation between themselves and Real Flame, nor did they allege they ever entered into any kind of agreement for the sale of the goods.

After the exceptions were raised, the plaintiffs filed a supplemental petition, adding a claim for declaratory judgment regarding allegations of fraud by Real Flame against them, arising from the deposition of a Real Flame corporate representative, John Ridgeway.

After a hearing, the trial court rendered judgment on September 13, 2012, granting the exceptions of no cause of action, no right of action, and lack of subject matter jurisdiction, but denying all the other exceptions.

The trial judge gave the following oral reasons for the rulings:

The exceptions that seem to strike at the heart of all of the allegations contained in the petition would be the ones, more particularly or specifically indicated as no cause of action.
The Court finds ... that essentially what the plaintiff is seeking in this case from this Court is a permanent order ordering a non-resident defendant to continue to do business with it....
[T]he plaintiff does so without establishing or pleading that there was and/or is, in fact, an agreement, a specific agreement whereby the defendant commits itself under terms and conditions to service plaintiffs request to “sell its products.”
The Court is aware that the plaintiff in this case does not have ... “an actual store front” ... in which people can walk in, view products, etc.
|sFor those reasons as well as the reasons contained in the arguments sup[687]*687porting the exceptions I grant the exceptions of no cause, no right.
Should there be some misunderstanding I’m not going to simply say that moots ... a discussion of all of the other exceptions....
Okay, all of the others are denied, except subject matter jurisdiction, I grant that. But again, I repeat that once the exception of no cause of action is granted that, in my estimation, moots the rest of them.

ARGUMENTS AND ANALYSIS

On appeal, the plaintiffs assert the district court erred in granting the exceptions of no cause of action, no right of action and lack of subject matter jurisdiction.2

The defendant’s arguments on appeal are directed to the merits of the plaintiffs’ claims rather than to the substance of the exceptions that are the subject of this appeal.

The objections that' may be raised through the peremptory exception include but are not limited to no cause of action and no right of action, or no interest in the plaintiff to institute the suit. La. C.C.P. art. 927(A)(5) — (6).

No Cause of Action

The plaintiffs argue the district court erred in granting the exception of no cause of action and in holding that a contract was required between the parties in order for there to be a cause of action. They contend the issue is whether their allegations stated a cause of action for unfair trade practices or other causes of action.

An exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the | pleading. La. C.C.P. art. 927; Moreno v. Entergy Corp., 2010-2268, p. 3 (La.2/18/11), 64 So.3d 761, 762.

In the trial court, the only basis the defendant stated for the exceptions of no cause of action and no right of action was the following:

Plaintiffs have not alleged any contractual obligation between plaintiffs and Real Flame, and only provide that it has sold the products over the internet. It does not allege that plaintiffs have entered into any kind of agreement for the sale of the goods, nor does it allege that it has a “real store” so that the flammable products could be delivered to the customers, via mail or courier in accordance with postal and courier regulations.

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Bluebook (online)
119 So. 3d 683, 12 La.App. 5 Cir. 956, 2013 WL 2249246, 2013 La. App. LEXIS 1028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurricane-fence-co-v-jensen-metal-products-inc-lactapp-2013.