OSCEOLA P. SCANLAN AND SAMUEL P. NO. 21-CA-323 SCANLAN FIFTH CIRCUIT VERSUS COURT OF APPEAL MBF OF METAIRIE, LLC D/B/A MATT BOWERS FORD, CHRISTOPHER STATE OF LOUISIANA HAGGSTROM, JEFFREY BURNS, CHRISTOPHER JAC, AND AB INSURANCE COMPANY
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 809-296, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
March 23, 2022
MARC E. JOHNSON JUDGE
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Hans J. Liljeberg
AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS MEJ SMC HJL COUNSEL FOR PLAINTIFF/APPELLANT, OSCEOLA P. SCANLAN AND SAMUEL P. SCANLAN Raymond C. Burkart, Jr. JOHNSON, J.
Plaintiffs/Appellants, Osceola P. Scanlan and Samuel P. Scanlan, appeal the
trial court’s judgment that sustained the peremptory exception of
Defendants/Appellees, MBF of Metairie, LLC d/b/a Matt Bowers Ford (hereinafter
referred to as “MBF”), Christopher Haggstrom, Jeffery Burns, and Christopher
Jackson, and dismissed the action of Samuel, without prejudice, for loss of wages
in the 24th Judicial District Court, Division “K”. For the following reasons, we
affirm in part, reverse in part, and remand to the trial court with instructions.
FACTS AND PROCEDURAL HISTORY
On August 17, 2020, Appellants filed a “Petition for Damages” against
Defendants. In their joint petition, Appellants alleged that on or about September
3, 2019, Samuel was changing the spark plugs on a 2006 Ford Mustang owned by
his father, Osceola. While changing the spark plugs, a piece of a spark plug broke
off and fell into cylinder head number five, which subsequently required the
service repair of the Mustang by Appellees. Appellants alleged that they incurred
damages through the negligence and breach of duties of Appellees during the
service repair of the Mustang. Specifically, Samuel alleged a loss of wages.
Appellees filed their “Exception of No Cause of Action with Incorporated
Memorandum in Support, Answer to Petition for Damages, and Reconventional
Demand” on October 26, 2020. In their exception, Appellees asserted that Samuel
had no ownership and/or insurable interest in the Mustang; thus, they could not be
liable to Samuel for any damages under any legal theory. Appellees then alleged
in their reconventional demand that the damages claimed by Appellants were
caused solely by the fault and/or negligence of Samuel and requested judgment
against Samuel for any amount that may be rendered against them.
A hearing on the exception of no cause of action was held on January 8,
2021. At the conclusion of the hearing, the trial court sustained Appellees’
21-CA-323 1 exception and dismissed Samuel’s claims against them without prejudice. The trial
court rendered a written judgment stating the same on February 19, 2021.
Appellants filed a motion for new trial on January 25, 2021, which was denied by
the trial court on March 22, 2021. The instant appeal followed.
ASSIGNMENTS OF ERROR
On appeal, Appellants alleged that the trial court committed reversible error
by: 1) dismissing Samuel’s claims against Appellees, and 2) denying their motion
for a new trial.
LAW AND ANALYSIS
Dismissal of Samuel’s claims and Denial of Motion for New Trial1
Appellants have raised the denial of their motion for new trial as an
assignment of error. Denial of a motion for new trial is an interlocutory and non-
appealable judgment. First Bank and Trust v. Proctor’s Cove II, LLC, 13-802 (La.
App. 5 Cir. 9/24/14); 150 So.3d 418, 423, writ denied, 14-2236 (La. 1/9/15); 157
So.3d 1110. However, the Louisiana Supreme Court has instructed the courts of
appeal to consider an appeal of the denial of a motion for new trial as an appeal of
the judgment on the merits, when it is clear from the appellant’s brief that the
intent is to appeal the merits of the case. Id. It is clear from Appellants’ brief that
they intended to appeal the merits of the February 19, 2021 judgment, which
sustained Appellees’ exception of no cause of action and dismissed Samuel’s
claims against them.
Appellants allege that the trial court erred in sustaining Appellee’s
peremptory exception of no cause of action and dismissing Samuel’s claims. They
argue that Samuel states a cause of action in the joint petition. They contend that
Samuel had usufruct of the Mustang because Osceola gave Samuel use and
possession of the Mustang for a limited period of time to derive income from
1 Appellees did not file a brief in this appeal.
21-CA-323 2 Samuel’s gainful employment; and, as a usufructuary, Samuel had the right to
possess the Mustang and derive the utility, profits, and advantages that possession
of the Mustang produced. Thus, Appellants maintain that Samuel had an insurable
interest in the Mustang through his usufruct.
Appellants also argue that they had a gratuitous contract, whereby Osceola
loaned a non-consumable thing (the Mustang) to Sam for his use and return. They
contend that their gratuitous contract is akin to the rights of a lessee who sustains
damages. Appellants further argue that Appellees’ reconventional demand is an
additional acknowledgment of the existence of Samuel’s cause of action. Lastly,
Appellants argue that Samuel’s petition raises causes of action, subject to the duty-
risk analysis. In the event that this Court does not overrule the trial court’s
judgment, Appellants request that they be allowed to amend Samuel’s petition for
damages.
Pursuant to La. C.C.P. art. 934, “[w]hen the grounds of the objection
pleaded by the peremptory exception may be removed by amendment of the
petition, the judgment sustaining the exception shall order such amendment within
the delay allowed by the court. If the grounds of the objection raised through the
exception cannot be so removed, or if the plaintiff fails to comply with the order to
amend, the action, claim, demand, issue, or theory shall be dismissed.” When
reviewing a judgment sustaining a peremptory exception of no cause of action, this
Court, in Grubbs v. Haven Custom Furnishings, LLC, 18-710 (La. App. 5 Cir.
5/29/19); 274 So.3d 844, 847-48, has stated the following:
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. The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The exception’s function is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert the exception raising the objection of no cause
21-CA-323 3 of action. For the purpose of determining the issues raised by the exception, all facts pleaded in the petition must be accepted as true.
The appellate court standard of review of a judgment sustaining an exception of no cause of action is de novo because the exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. A petition should not be dismissed for failure to state a cause of action, unless it appears beyond a doubt the plaintiff can prove no set of facts in support of any claim that would entitle him to relief.
(Internal citations omitted).
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OSCEOLA P. SCANLAN AND SAMUEL P. NO. 21-CA-323 SCANLAN FIFTH CIRCUIT VERSUS COURT OF APPEAL MBF OF METAIRIE, LLC D/B/A MATT BOWERS FORD, CHRISTOPHER STATE OF LOUISIANA HAGGSTROM, JEFFREY BURNS, CHRISTOPHER JAC, AND AB INSURANCE COMPANY
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 809-296, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
March 23, 2022
MARC E. JOHNSON JUDGE
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Hans J. Liljeberg
AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS MEJ SMC HJL COUNSEL FOR PLAINTIFF/APPELLANT, OSCEOLA P. SCANLAN AND SAMUEL P. SCANLAN Raymond C. Burkart, Jr. JOHNSON, J.
Plaintiffs/Appellants, Osceola P. Scanlan and Samuel P. Scanlan, appeal the
trial court’s judgment that sustained the peremptory exception of
Defendants/Appellees, MBF of Metairie, LLC d/b/a Matt Bowers Ford (hereinafter
referred to as “MBF”), Christopher Haggstrom, Jeffery Burns, and Christopher
Jackson, and dismissed the action of Samuel, without prejudice, for loss of wages
in the 24th Judicial District Court, Division “K”. For the following reasons, we
affirm in part, reverse in part, and remand to the trial court with instructions.
FACTS AND PROCEDURAL HISTORY
On August 17, 2020, Appellants filed a “Petition for Damages” against
Defendants. In their joint petition, Appellants alleged that on or about September
3, 2019, Samuel was changing the spark plugs on a 2006 Ford Mustang owned by
his father, Osceola. While changing the spark plugs, a piece of a spark plug broke
off and fell into cylinder head number five, which subsequently required the
service repair of the Mustang by Appellees. Appellants alleged that they incurred
damages through the negligence and breach of duties of Appellees during the
service repair of the Mustang. Specifically, Samuel alleged a loss of wages.
Appellees filed their “Exception of No Cause of Action with Incorporated
Memorandum in Support, Answer to Petition for Damages, and Reconventional
Demand” on October 26, 2020. In their exception, Appellees asserted that Samuel
had no ownership and/or insurable interest in the Mustang; thus, they could not be
liable to Samuel for any damages under any legal theory. Appellees then alleged
in their reconventional demand that the damages claimed by Appellants were
caused solely by the fault and/or negligence of Samuel and requested judgment
against Samuel for any amount that may be rendered against them.
A hearing on the exception of no cause of action was held on January 8,
2021. At the conclusion of the hearing, the trial court sustained Appellees’
21-CA-323 1 exception and dismissed Samuel’s claims against them without prejudice. The trial
court rendered a written judgment stating the same on February 19, 2021.
Appellants filed a motion for new trial on January 25, 2021, which was denied by
the trial court on March 22, 2021. The instant appeal followed.
ASSIGNMENTS OF ERROR
On appeal, Appellants alleged that the trial court committed reversible error
by: 1) dismissing Samuel’s claims against Appellees, and 2) denying their motion
for a new trial.
LAW AND ANALYSIS
Dismissal of Samuel’s claims and Denial of Motion for New Trial1
Appellants have raised the denial of their motion for new trial as an
assignment of error. Denial of a motion for new trial is an interlocutory and non-
appealable judgment. First Bank and Trust v. Proctor’s Cove II, LLC, 13-802 (La.
App. 5 Cir. 9/24/14); 150 So.3d 418, 423, writ denied, 14-2236 (La. 1/9/15); 157
So.3d 1110. However, the Louisiana Supreme Court has instructed the courts of
appeal to consider an appeal of the denial of a motion for new trial as an appeal of
the judgment on the merits, when it is clear from the appellant’s brief that the
intent is to appeal the merits of the case. Id. It is clear from Appellants’ brief that
they intended to appeal the merits of the February 19, 2021 judgment, which
sustained Appellees’ exception of no cause of action and dismissed Samuel’s
claims against them.
Appellants allege that the trial court erred in sustaining Appellee’s
peremptory exception of no cause of action and dismissing Samuel’s claims. They
argue that Samuel states a cause of action in the joint petition. They contend that
Samuel had usufruct of the Mustang because Osceola gave Samuel use and
possession of the Mustang for a limited period of time to derive income from
1 Appellees did not file a brief in this appeal.
21-CA-323 2 Samuel’s gainful employment; and, as a usufructuary, Samuel had the right to
possess the Mustang and derive the utility, profits, and advantages that possession
of the Mustang produced. Thus, Appellants maintain that Samuel had an insurable
interest in the Mustang through his usufruct.
Appellants also argue that they had a gratuitous contract, whereby Osceola
loaned a non-consumable thing (the Mustang) to Sam for his use and return. They
contend that their gratuitous contract is akin to the rights of a lessee who sustains
damages. Appellants further argue that Appellees’ reconventional demand is an
additional acknowledgment of the existence of Samuel’s cause of action. Lastly,
Appellants argue that Samuel’s petition raises causes of action, subject to the duty-
risk analysis. In the event that this Court does not overrule the trial court’s
judgment, Appellants request that they be allowed to amend Samuel’s petition for
damages.
Pursuant to La. C.C.P. art. 934, “[w]hen the grounds of the objection
pleaded by the peremptory exception may be removed by amendment of the
petition, the judgment sustaining the exception shall order such amendment within
the delay allowed by the court. If the grounds of the objection raised through the
exception cannot be so removed, or if the plaintiff fails to comply with the order to
amend, the action, claim, demand, issue, or theory shall be dismissed.” When
reviewing a judgment sustaining a peremptory exception of no cause of action, this
Court, in Grubbs v. Haven Custom Furnishings, LLC, 18-710 (La. App. 5 Cir.
5/29/19); 274 So.3d 844, 847-48, has stated the following:
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. The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The exception’s function is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert the exception raising the objection of no cause
21-CA-323 3 of action. For the purpose of determining the issues raised by the exception, all facts pleaded in the petition must be accepted as true.
The appellate court standard of review of a judgment sustaining an exception of no cause of action is de novo because the exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. A petition should not be dismissed for failure to state a cause of action, unless it appears beyond a doubt the plaintiff can prove no set of facts in support of any claim that would entitle him to relief.
(Internal citations omitted). 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. Succession of
Griffin, 17-637 (La. App. 5 Cir. 5/30/18); 249 So.3d 1048, 1055, writ denied, 18-
1081 (La. 10/15/18); 253 So.3d 1303.
In the instant matter, Appellants set forth 21 allegations in their joint
petition. Among the pertinent allegations in this matter, Appellants alleged that
Osceola’s Mustang was required for Samuel’s continued employment as a delivery
employee for a food service establishment. They stated that, while Samuel was
changing a spark plug in Osceola’s Mustang on September 3, 2019, a part of the
spark plug broke and fell into cylinder head number five. In an effort to prevent
damage to the Mustang’s engine, Appellants stated that they contacted a tow truck
company and instructed the tow driver not to start the engine while towing the
vehicle to MBF service facility. The petition alleges that Samuel placed a note on
the dashboard of the Mustang informing anyone at MBF not to start the engine
because a spark plug part was in the engine cylinder. It also alleges that Samuel
orally informed Christopher Jackson not to start the engine because of the spark
plug part. Appellants believed that an employee of MFB started the Mustang’s
engine to drive it into a service area for repairs. They further stated that Samuel
was eventually terminated from his job because he could not make deliveries to his
employer’s customers. Samuel prayed for loss of wages, as a result of Appellees’
21-CA-323 4 alleged negligence and breach of duties.
In their exception of no cause of action, Appellees maintained that, since
Samuel had no ownership and/or insurable interest in the Mustang, there was no
duty owed to Samuel at any time for his alleged indirect economic loss related to
Osceola’s vehicle. They averred that the duty allegedly violated does not
encompass the particular risk of injury allegedly sustained by Samuel. Ultimately,
Appellees asserted they could not be liable to Samuel for any damages under any
legal theory.
At the hearing on the exception, the trial court orally sustained Appellee’s
exception of no cause of action. The court found that, in terms of the moral, social,
and economic values with a view towards the ideal of justice, Samuel’s claims did
not satisfy the Louisiana Supreme Court’s requirements. In regards to amending
the petition, the trial judge stated, “I’m not – I mean I’m not suggesting that you
amend because I don’t know that there are any facts that would change things. If
you’re aware of them[,] then certainly you can amend your petition and there may
be another exception.” The trial judge subsequently noted that her dismissal was
without prejudice.
After review, we find that the trial court was not legally erroneous in
sustaining Appellees’ exception of no cause of action. Appellants’ petition does
not set forth sufficient allegations of fact that would afford Samuel a remedy under
the law for loss of wages. However, we also find that the trial court was erroneous
in failing to allow Appellants the opportunity to amend their petition. As earlier
cited, La. C.C.P. art. 934 provides that a judgment sustaining the exception of no
cause of action shall dismiss the action, if the grounds of the objection cannot be
removed, or order amendment of the petition. We conclude that Appellants should
have been allowed the opportunity to amend their petition to state a valid cause of
21-CA-323 5 action on behalf of Samuel.2
DECREE
For the foregoing reasons, we affirm the portion of the trial court’s judgment
sustaining the peremptory exception of no cause of action filed by MBF of
Metairie, LLC d/b/a Matt Bowers Ford (hereinafter referred to as “MBF”),
Christopher Haggstrom, Jeffery Burns, and Christopher Jackson, and reverse the
dismissal of Samuel P. Scanlan’s claims. Accordingly, we remand the matter to
the trial court with instructions that it afford Appellants an opportunity to amend
the joint petition for damages to remove the grounds for the objection for the
exception of no cause of action, if they are able to do so, within a reasonable time
delay pursuant to La. C.C.P. art. 934.
AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS
2 According to La. C.C. art. 535, a usufruct is a real right of limited duration on the property of another. A usufructuary may institute against a third person all actions that are necessary to insure the possession, enjoyment, and perseveration of his right. La. C.C. art. 566. When any loss, extinction, or destruction of property subject to usufruct is attributable to the fault of a third person, the usufruct does not terminate, but it attaches to any claim for damages and the proceeds therefrom. La. C.C. art. 614.
21-CA-323 6 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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