Kathleen McGoey Versus Abc Insurance Company and My Sal L.L.C.
This text of Kathleen McGoey Versus Abc Insurance Company and My Sal L.L.C. (Kathleen McGoey Versus Abc Insurance Company and My Sal L.L.C.) 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.
Opinion
KATHLEEN MCGOEY NO. 24-C-549
VERSUS FIFTH CIRCUIT
COURT OF APPEAL ABC INSURANCE COMPANY AND MY SAL L.L.C. STATE OF LOUISIANA
December 16, 2024
Linda Wiseman First Deputy Clerk
IN RE BROOKS AND COMPANY HAIR SALON D/B/A SWEETPEA ENTERPRISES, INC.
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD A. ROWAN, JR., DIVISION "L", NUMBER 848-318
Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst
WRIT DENIED
In this writ application, relator, Brooks and Company Hair Salon d/b/a
SweetPea Enterprises, Inc., seeks this Court’s supervisory review of the trial court’s
September 17, 2024 judgment which denied its peremptory exceptions of no cause of
action and no right of action. Finding no error in the trial court’s judgment, we deny
relief.
On January 6, 2023, plaintiff, Kathleen McGoey, allegedly tripped and fell
while leaving Brooks and Company Hair Salon, located at 115 Metairie Road in
Metairie, Louisiana. Plaintiff filed a petition for damages against the property owner,
MY SAL, LLC. Therein, plaintiff alleged that upon leaving the salon, she proceeded
down a two-riser brick staircase at the front of the main entrance to the salon and fell.
MY SAL filed an answer, affirmative defenses, and a third party demand, naming
Brooks and Company Hair Salon d/b/a SweetPea Enterprises, Inc., owner of the salon
and the lessee of the premises at the time of the accident, as a third party defendant. MY SAL asserted that pursuant to the lease agreement, SweetPea contractually
“assumed responsibility for the condition of the premises,” including any alleged
defects or vices of the property. MY SAL also specifically alleged:
Pursuant to the lease agreement, [SweetPea] is contractually obligated to defend, indemnify, and hold [MY SAL] harmless from any and all claims or liability to third persons arising from or out of any occurrence at the leased premises or arising out of the occupancy or use by [SweetPea] of the leased premises and any activities of [SweetPea] in the parking areas or common service areas.
MY SAL alleged that the indemnification provision of the lease provides that
the leased premises includes the areas used by SweetPea and used for the benefit of
SweetPea’s business. Additionally, MY SAL claimed that SweetPea is contractually
obligated to maintain liability insurance and to name MY SAL as an additional
insured on its liability insurance policy providing coverage for the claims asserted
against MY SAL by plaintiff, and that failure to provide that coverage is considered a
breach of the contract.
In response, SweetPea filed exceptions of no right of action and no cause of
action. SweetPea highlighted that in MY SAL’s answer and what is its eighteenth
affirmative defense, it pled “any and all lease agreements regarding any areas or
premises at issue as if copied herein verbatim, and pleads any and all terms,
conditions, limitations of liability, or any language contained in any said lease
agreements as if copied herein verbatim.” Therefore, SweetPea asserted the lease
itself could be considered and attached it in support of its exceptions. SweetPea
claimed that based on the terms of the lease, it has no control over the “common
areas” and it is MY SAL who controls the two-riser brick staircase where the accident
occurred. SweetPea argued that MY SAL had the duty to operate and maintain the
area where plaintiff fell.
In opposition, MY SAL argued that the lease should not be considered since
evidence may not be used in support of an exception of no cause of action. However,
even if it were considered, it argued that the lease does not state that the two-riser brick staircase is part of the common area. Further, the indemnification provision
provides that the leased premises extends to areas used by SweetPea and used for the
benefit of its business.
Following a hearing on the exceptions, the trial court signed a written judgment
on September 17, 2024, denying the exceptions of no cause of action and no right of
action.
A cause of action, for purposes of the peremptory exception, is defined as the
operative facts that give rise to the plaintiff’s right to judicially assert an action
against the defendant. Labruzzo v. State, 23-194 (La. App. 5 Cir. 5/22/24), 388 So.3d
1208, 1214, citing Grubbs v. Haven Custom Furnishings, LLC, 18-710 (La. App. 5
Cir. 5/29/19), 274 So.3d 844, 847. The exception’s function is to test the legal
sufficiency of the petition by determining whether the law affords a remedy to the
facts alleged in the pleading. 5301 Jefferson Hwy, LLC v. A. Maloney Moving &
Storage, Inc., 23-211 (La. App. 5 Cir. 5/29/24), 392 So.3d 337, 348. No evidence
may be introduced to support or controvert the exception raising the objection of no
cause of action. La. C.C.P. art. 931. For purposes of its determination, all well-
pleaded facts are accepted as true and all doubts are resolved in favor of the
sufficiency of the petition. Stewart v. Miller, 23-535 (La. App. 5 Cir. 5/29/24), 388
So.3d 1264, 1268. Whether the plaintiff can prove the allegations set forth in the
petition is not determinative of the exception of no cause of action, and the court may
not go beyond the petition to the merits of the case. Scanlan v. MBF of Metairie,
LLC, 21-323 (La. App. 5 Cir. 3/23/22), 337 So.3d 562, 565.
The exception of no right of action raises the issue of whether a particular
plaintiff falls as a matter of law within the general class of persons in whose favor the
remedy may be asserted. Fraino v. Fraino, 24-173 (La. App. 5 Cir. 6/17/24), 391
So.3d 760, 765. An exception of no right of action assumes that the petition states a
valid cause of action and questions whether the plaintiff has a legal interest in the
subject matter of the litigation. Davisson v. Bd. of Examiners for New Orleans, 22- 519 (La. App. 5 Cir. 5/24/23), 366 So.3d 784, 789. Unlike the exception of no cause
of action, on the trial of the exception of no right of action, evidence is admissible to
support or controvert the issue of whether there is a right or interest in the particular
plaintiff to institute the suit. Id. The exception does not raise the question of the
plaintiff’s ability to prevail on the merits, nor the question of whether the defendant
may have a valid defense. Shorter v. Akins, 11-1553 (La. App. 3 Cir. 4/4/12), 86
So.3d 883, 885, writ denied, 12-1363 (La. 10/8/12), 98 So.3d 853.
The appellate court’s standard of review of a judgment sustaining an exception
of no cause of action and an exception of no right of action is de novo. Succession of
Vidrine, 23-15 (La. App. 5 Cir. 12/6/23), 380 So.3d 590, 593; 3218 Magazine, L.L.C.
v. Lloyds of London, 08-727 (La. App. 5 Cir. 2/25/09), 10 So.3d 242, 243.
Upon de novo review, we conclude that the trial court did not err in its denial
of SweetPea’s exceptions of no cause of action and no right of action. Accepting all
facts pleaded in the third party demand as true, we conclude MY SAL has stated a
valid cause of action against SweetPea, and MY SAL has a valid legal interest in the
subject matter of this litigation. We express no opinion as to the merits of the third
party demand’s claims at this time.
Accordingly, this writ application is denied.
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