Judgment rendered December 18, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,911-CW
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
MARK A. FURLOW Respondent
versus
BYRON E. TRUST AND PETRO- Applicants CHEM OPERATING COMPANY, INC.
On Application for Writs from the Second Judicial District Court for the Parish of Claiborne, Louisiana Trial Court No. 42,595
Honorable Walter E. May, Jr., Judge
COOK, YANCEY, KING & GALLOWAY Counsel for Applicants By: John T. Kalmbach W. Drew Burnham J. Bert Babington
COLVIN, SMITH, McKAY & BAYS Counsel for Respondent By: James H. Colvin, Jr. Daniel N. Bays, Jr.
Before PITMAN, STONE, and STEPHENS, JJ. PITMAN, C. J.
Defendants-Applicants Byron E. Trust and Petro-Chem Operating
Company, Inc. (“Petro-Chem”) seek supervisory writs on the district court’s
denial of their motion for summary judgment in favor of Plaintiff-
Respondent Mark A. Furlow. For the following reasons, we grant the writ,
reverse the judgment of the district court and grant Trust and Petro-Chem’s
motion for summary judgment, dismissing Furlow’s petition with prejudice.
FACTS
On February 25, 2022, Furlow filed a petition for damages against
Petro-Chem and Trust, who is Petro-Chem’s chief operating officer. He
stated that he is a plaintiff in a class action lawsuit filed on January 31, 2022,
against Petro-Chem for conversion of minerals. Furlow alleged that on
February 24, 2022, Trust contacted his employer, Roberson Trucking
Company, Inc. (“Roberson Trucking”), and asked its owner, Ricky Roberson
(“Roberson”), if he still worked there; Roberson confirmed that he did; and
Trust informed Roberson that if Furlow continued to work there, Petro-
Chem would cease using Roberson Trucking as a vendor. Furlow stated that
Roberson then terminated him due to the volume of business that Roberson
Trucking does with Petro-Chem. He argued that these actions by Trust,
individually and on behalf of Petro-Chem, constitute unfair and/or deceptive
acts in violation of the Louisiana Unfair Trade Practices Act (“LUTPA”).
He stated that his injuries include past and future lost wages, past and future
lost business opportunities, general damages, attorney fees and costs.
On October 30, 2023, Trust and Petro-Chem filed an answer and
denied Furlow’s allegations. They argued that Furlow failed to state a cause
of action because as an at-will employee, his termination cannot be the basis for a claim under LUTPA. They stated that Furlow has not alleged any
actual damages they caused or for which they are liable.
On November 2, 2023, Trust and Petro-Chem filed a motion for
summary judgment. They argued that even if Furlow’s allegations are true,
he has not stated a cause of action against them under LUTPA. They
explained that as Louisiana is an at-will employment state, Furlow can be
terminated for any reason, regardless of whether the reason was accurate,
fair or reasonable. They contended that even if Furlow stated a cause of
action, there are no genuine issues of material fact that Trust or any other
Petro-Chem representative had anything to do with Furlow’s termination.
On March 18, 2024, Furlow filed an opposition to the motion for
summary judgment, stating that the basis of his lawsuit is that Trust and
Petro-Chem violated LUTPA by giving Roberson an ultimatum to either
terminate him or no longer have Petro-Chem as a client. He argued that
genuine issues of material fact exist regarding whether Trust and/or Petro-
Chem threatened to stop working with Roberson Trucking unless Roberson
terminated him in retaliation for his suit against Petro-Chem.
A hearing on the motion for summary judgment was held on April 4,
2024. The district court denied the motion for summary judgment, finding
that there is a genuine issue of material fact in this matter.
Trust and Petro-Chem applied for supervisory writs. This court
granted the writ to docket.
DISCUSSION
In their sole assignment of error, Trust and Petro-Chem argue that the
district court erred by denying their motion for summary judgment. They
contend that as an at-will employee, Furlow has no cause of action against 2 them, under LUTPA or otherwise, for the termination of his employment,
even if his unsubstantiated version of the facts is accepted as true. They
argue that the termination of an at-will employee cannot serve as the basis
for a claim under LUTPA and that Furlow cannot circumvent this law by
suing them as third parties rather than his employer.
Furlow argues that the district court did not abuse its discretion by
denying the motion for summary judgment. He contends that it correctly
concluded that it was not in a position to determine whether Trust demanded
that Roberson terminate Furlow. He argues that Trust’s actions are
violations of LUTPA as they violate public policy and are unethical,
oppressive, unscrupulous or substantially injurious.
A motion for summary judgment shall be granted if the motion,
memorandum and supporting documents show that there is no genuine issue
as to material fact and that the mover is entitled to judgment as a matter of
law. La. C.C.P. art. 966(A)(3). The burden of proof rests with the mover.
La. C.C.P. art. 966(D)(1). The burden is on the adverse party to produce
factual support sufficient to establish the existence of a genuine issue of
material fact or that the mover is not entitled to judgment as a matter of law.
Id. A fact is material when its existence or nonexistence may be essential to
a plaintiff’s cause of action under the applicable theory of recovery.
Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So. 3d 791. A
fact is material if it potentially ensures or precludes recovery, affects a
litigant’s ultimate success or determines the outcome of the legal dispute.
Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So. 2d 764. A genuine issue is
one as to which reasonable persons could disagree. Id. If reasonable
3 persons could reach only one conclusion, there is no need for a trial on that
issue and summary judgment is appropriate. Id.
Appellate courts review motions for summary judgment de novo,
using the same criteria that govern the district court’s determination of
whether summary judgment is appropriate. Noland v. Lenard, 55,342 (La.
App. 2 Cir. 11/15/23), 374 So. 3d 1133, writ denied, 23-01670 (La. 2/14/24),
379 So.3d 32.
In Quebedeaux v. Dow Chem. Co., 01-2297 (La. 6/21/02), 820 So. 2d
542, the Louisiana Supreme Court discussed Louisiana’s at-will employment
doctrine and stated:
The employer-employee relationship is a contractual relationship. . . . When the employer and employee are silent on the terms of the employment contract, the civil code provides the default rule of employment-at-will. . . . This default rule is contained in LSA–C.C. art. 2747.
Under LSA–C.C. art. 2747, generally, “an employer is at liberty to dismiss an employee at any time for any reason without incurring liability for the discharge.” See Williams v. Delta Haven, Inc., 416 So.2d 637 (La. App. 2nd Cir.1982).
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Judgment rendered December 18, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,911-CW
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
MARK A. FURLOW Respondent
versus
BYRON E. TRUST AND PETRO- Applicants CHEM OPERATING COMPANY, INC.
On Application for Writs from the Second Judicial District Court for the Parish of Claiborne, Louisiana Trial Court No. 42,595
Honorable Walter E. May, Jr., Judge
COOK, YANCEY, KING & GALLOWAY Counsel for Applicants By: John T. Kalmbach W. Drew Burnham J. Bert Babington
COLVIN, SMITH, McKAY & BAYS Counsel for Respondent By: James H. Colvin, Jr. Daniel N. Bays, Jr.
Before PITMAN, STONE, and STEPHENS, JJ. PITMAN, C. J.
Defendants-Applicants Byron E. Trust and Petro-Chem Operating
Company, Inc. (“Petro-Chem”) seek supervisory writs on the district court’s
denial of their motion for summary judgment in favor of Plaintiff-
Respondent Mark A. Furlow. For the following reasons, we grant the writ,
reverse the judgment of the district court and grant Trust and Petro-Chem’s
motion for summary judgment, dismissing Furlow’s petition with prejudice.
FACTS
On February 25, 2022, Furlow filed a petition for damages against
Petro-Chem and Trust, who is Petro-Chem’s chief operating officer. He
stated that he is a plaintiff in a class action lawsuit filed on January 31, 2022,
against Petro-Chem for conversion of minerals. Furlow alleged that on
February 24, 2022, Trust contacted his employer, Roberson Trucking
Company, Inc. (“Roberson Trucking”), and asked its owner, Ricky Roberson
(“Roberson”), if he still worked there; Roberson confirmed that he did; and
Trust informed Roberson that if Furlow continued to work there, Petro-
Chem would cease using Roberson Trucking as a vendor. Furlow stated that
Roberson then terminated him due to the volume of business that Roberson
Trucking does with Petro-Chem. He argued that these actions by Trust,
individually and on behalf of Petro-Chem, constitute unfair and/or deceptive
acts in violation of the Louisiana Unfair Trade Practices Act (“LUTPA”).
He stated that his injuries include past and future lost wages, past and future
lost business opportunities, general damages, attorney fees and costs.
On October 30, 2023, Trust and Petro-Chem filed an answer and
denied Furlow’s allegations. They argued that Furlow failed to state a cause
of action because as an at-will employee, his termination cannot be the basis for a claim under LUTPA. They stated that Furlow has not alleged any
actual damages they caused or for which they are liable.
On November 2, 2023, Trust and Petro-Chem filed a motion for
summary judgment. They argued that even if Furlow’s allegations are true,
he has not stated a cause of action against them under LUTPA. They
explained that as Louisiana is an at-will employment state, Furlow can be
terminated for any reason, regardless of whether the reason was accurate,
fair or reasonable. They contended that even if Furlow stated a cause of
action, there are no genuine issues of material fact that Trust or any other
Petro-Chem representative had anything to do with Furlow’s termination.
On March 18, 2024, Furlow filed an opposition to the motion for
summary judgment, stating that the basis of his lawsuit is that Trust and
Petro-Chem violated LUTPA by giving Roberson an ultimatum to either
terminate him or no longer have Petro-Chem as a client. He argued that
genuine issues of material fact exist regarding whether Trust and/or Petro-
Chem threatened to stop working with Roberson Trucking unless Roberson
terminated him in retaliation for his suit against Petro-Chem.
A hearing on the motion for summary judgment was held on April 4,
2024. The district court denied the motion for summary judgment, finding
that there is a genuine issue of material fact in this matter.
Trust and Petro-Chem applied for supervisory writs. This court
granted the writ to docket.
DISCUSSION
In their sole assignment of error, Trust and Petro-Chem argue that the
district court erred by denying their motion for summary judgment. They
contend that as an at-will employee, Furlow has no cause of action against 2 them, under LUTPA or otherwise, for the termination of his employment,
even if his unsubstantiated version of the facts is accepted as true. They
argue that the termination of an at-will employee cannot serve as the basis
for a claim under LUTPA and that Furlow cannot circumvent this law by
suing them as third parties rather than his employer.
Furlow argues that the district court did not abuse its discretion by
denying the motion for summary judgment. He contends that it correctly
concluded that it was not in a position to determine whether Trust demanded
that Roberson terminate Furlow. He argues that Trust’s actions are
violations of LUTPA as they violate public policy and are unethical,
oppressive, unscrupulous or substantially injurious.
A motion for summary judgment shall be granted if the motion,
memorandum and supporting documents show that there is no genuine issue
as to material fact and that the mover is entitled to judgment as a matter of
law. La. C.C.P. art. 966(A)(3). The burden of proof rests with the mover.
La. C.C.P. art. 966(D)(1). The burden is on the adverse party to produce
factual support sufficient to establish the existence of a genuine issue of
material fact or that the mover is not entitled to judgment as a matter of law.
Id. A fact is material when its existence or nonexistence may be essential to
a plaintiff’s cause of action under the applicable theory of recovery.
Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So. 3d 791. A
fact is material if it potentially ensures or precludes recovery, affects a
litigant’s ultimate success or determines the outcome of the legal dispute.
Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So. 2d 764. A genuine issue is
one as to which reasonable persons could disagree. Id. If reasonable
3 persons could reach only one conclusion, there is no need for a trial on that
issue and summary judgment is appropriate. Id.
Appellate courts review motions for summary judgment de novo,
using the same criteria that govern the district court’s determination of
whether summary judgment is appropriate. Noland v. Lenard, 55,342 (La.
App. 2 Cir. 11/15/23), 374 So. 3d 1133, writ denied, 23-01670 (La. 2/14/24),
379 So.3d 32.
In Quebedeaux v. Dow Chem. Co., 01-2297 (La. 6/21/02), 820 So. 2d
542, the Louisiana Supreme Court discussed Louisiana’s at-will employment
doctrine and stated:
The employer-employee relationship is a contractual relationship. . . . When the employer and employee are silent on the terms of the employment contract, the civil code provides the default rule of employment-at-will. . . . This default rule is contained in LSA–C.C. art. 2747.
Under LSA–C.C. art. 2747, generally, “an employer is at liberty to dismiss an employee at any time for any reason without incurring liability for the discharge.” See Williams v. Delta Haven, Inc., 416 So.2d 637 (La. App. 2nd Cir.1982). However, this right is tempered by numerous federal and state laws which proscribe certain reasons for dismissal of an at-will employee. . . . Aside from the federal and state statutory exceptions, there are no “[b]road policy considerations creating exceptions to employment at will and affecting relations between employer and employee.” See Gil v. Metal Service Corp., 412 So. 2d 706, 708 (La. App. 4th Cir. 1982).
See also Hayes v. Univ. Health Shreveport, LLC, 21-01601 (La. 1/7/22),
332 So. 3d 1163.
LUTPA declares unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce to be
unlawful. La. R.S. 51:1405(A). Any person who suffers any ascertainable
loss of money or movable property, corporeal or incorporeal, as a result of
the use or employment by another person of an unfair or deceptive method, 4 act or practice declared unlawful by R.S. 51:1405 may bring an action
individually. La. R.S. 51:1409(A). The range of prohibited practices under
LUTPA is extremely narrow. Cheramie Servs., Inc. v. Shell Deepwater
Prod., Inc., 09-1633 (La. 4/23/10), 35 So. 3d 1053. LUTPA does not
prohibit sound business practices, the exercise of permissible business
judgment or appropriate free enterprise transactions. Id., quoting Turner v.
Purina Mills, Inc., 989 F.2d 1419 (5th Cir. 1993). Only egregious actions
involving elements of fraud, misrepresentation, deception or other unethical
conduct will be sanctioned based on LUTPA. Cheramie Servs., Inc. v. Shell
Deepwater Prod., Inc., supra. Under LUTPA, the plaintiff must show the
alleged conduct offends established public policy and is immoral, unethical,
oppressive, unscrupulous or substantially injurious. Id., citing Moore v.
Goodyear Tire & Rubber Co., 364 So. 2d 630 (La. App. 2 Cir. 1978).
In the case sub judice, Furlow was an at-will employee of Roberson
Trucking, and Roberson was at liberty to terminate his employment at any
time for any reason. Terminating an at-will employee is not an unfair trade
practice. See In re Anderson, 539 B.R. 277 (Bankr. W.D. La. 2015); Sonnier
v. Diversified Healthcare-Lake Charles, LLC, 22-420 (La. App. 3 Cir.
4/26/23), 364 So. 3d 1213.
Furlow notably did not seek relief against his employer for wrongful
termination but rather sought a LUTPA claim against Trust and Petro-Chem,
who were involved in business with Roberson and Roberson Trucking.
Furlow cannot use a LUTPA claim against third parties as pretext to avoid
an unsuccessful claim of tortious interference of contract against them. See
Durand v. McGaw, 635 So. 2d 409 (La. App. 4 Cir. 1994), writ denied,
640 So. 2d 1318 (La. 1994). No genuine issues as to material fact exist in 5 this case. It is clear from the motion, memorandum and supporting
documents that Furlow cannot succeed in his LUTPA claim against Trust
and Petro-Chem, even if his allegations of the telephone call between Trust
and Roberson are true. The record in this case demonstrates that Trust and
Petro-Chem—and Roberson and Roberson Trucking—were engaged in
sound business practices and permissible business judgment that did not
violate the narrow range of prohibited practices under LUTPA.
Accordingly, we find that this assignment of error has merit.
CONCLUSION
For the foregoing reasons, we grant the writ, reverse the judgment of
the district court, grant the motion for summary judgment filed by
Defendants-Applicants Byron E. Trust and Petro-Chem Operating Company,
Inc. and dismiss with prejudice Plaintiff-Respondent Mark A. Furlow’s
petition. Costs of this appeal are assessed to Plaintiff-Respondent Mark A.
Furlow.
WRIT GRANTED; JUDGMENT REVERSED; JUDGMENT
RENDERED; PETITION DISMISSED WITH PREJUDICE.