Veteran Arms, LLC Versus Roots Productions, LLC, Full Flash Film Services of Louisiana, Inc., Graham Norris, Jr., Bryan Carpenter and Morey F. Bulter, Jr.

• Court: Louisiana Court of Appeal
• Decided: March 4, 2020
• Docket: 19-CA-179
• Status: Unknown

Opinion

VETERAN ARMS, LLC NO. 19-CA-179

VERSUS FIFTH CIRCUIT

ROOTS PRODUCTIONS, LLC, FULL FLASH COURT OF APPEAL FILM SERVICES OF LOUISIANA, INC., GRAHAM NORRIS, JR., BRYAN STATE OF LOUISIANA CARPENTER AND MOREY F. BULTER, JR.

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 756-973, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

March 04, 2020

ROBERT A. CHAISSON JUDGE

Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and John J. Molaison, Jr.

VACATED AND REMANDED RAC MEJ JJM COUNSEL FOR PLAINTIFF/APPELLEE, VETERAN ARMS, LLC J. Douglas Sunseri Richard J. Wolff

COUNSEL FOR DEFENDANT/APPELLANT, FULL FLASH FILM SERVICES OF LOUISIANA, INC. AND BRYAN CARPENTER Andrew T. Lilly CHAISSON, J.

This case involves a contract dispute regarding the provision of props and

services for the filming of a television show. Defendants Bryan Carpenter and Full

Flash Film Services of Louisiana, Inc. (“Full Flash”) appeal an August 27, 2018

judgment of the trial court granting a motion for partial summary judgment in

favor of plaintiff Veteran Arms, LLC (“Veteran Arms”). For the following

reasons, we vacate the judgment and remand the case for further proceedings.

FACTS AND PROCEDURAL HISTORY

On January 13, 2016, Veteran Arms filed a petition for damages against

Roots Productions, LLC; Full Flash; Graham Norris, Jr.; Bryan Carpenter; and

Morey F. Butler, Jr., in which Veteran Arms alleged that during the course of

filming of a historical reenactment miniseries in the late summer and early fall of

2015, it had provided or agreed to provide defendants (more particularly Full Flash

and Bryan Carpenter) various firearms and historical props including flintlock

small arms, Civil War uniforms, grenades, artillery ammunition, muskets, and

cannons. Disputes arose concerning the payment for the rental and/or purchase of

the equipment as well as Mr. Carpenter’s purported unauthorized use of Veteran

Arms’ credit account. Communications between the parties broke down in late

September of 2015. Thereafter, Charles Misulia, a representative and member of

Veteran Arms, travelled to New Orleans and recovered some, but not all of the

rented items. In its petition, Veteran Arms sought $184,332.11, as well as other

damages and attorney’s fees for breach of contract, personal injury under La. C.C.

art. 2315, fraud, misrepresentation, conversion, theft, detrimental reliance, unjust

enrichment, and violations of the Louisiana Unfair Trade Practices Act.

Defendants filed an answer to the petition in which they denied Veteran

Arms’ allegations. Full Flash, Mr. Carpenter, and Mr. Butler filed a demand-in-

19-CA-179 1 reconvention against Veteran Arms and Mr. Misulia, alleging breach of contract

and other damages.1

These filings were followed by a contentious discovery period which

included a January 19, 2017 judgment against Full Flash on a motion for contempt

filed by Veteran Arms for failure to respond to requests for production and

inspection of documents.

On October 26, 2017, Veteran Arms filed a motion for partial summary

judgment against the remaining defendants: Full Flash, Mr. Carpenter, and Mr.

Butler. The motion for partial summary judgment specified that it concerned only

some of the claims for breach of contract, violations of the Louisiana Unfair Trade

Practices Act, and failure to render payment on open account. These claims on the

motion for partial summary judgment amounted to $108,819.15. In its motion,

Veteran Arms reserved rights against defendants for the value of the remainder of

its claims against them.

In support of its motion for partial summary judgment, Veteran Arms

attached as evidence an affidavit of Mr. Misulia, which included various

documents as exhibits: transcripts of text message conversations between Mr.

Misulia and Mr. Carpenter, invoices issued by Veteran Arms to Mr. Carpenter,

copies of rental and services agreements signed by Mr. Misulia and Mr. Carpenter,

photographs of the equipment recovered from filming, account statements, and

invoices issued by Full Flash to Roots Production for use of Veteran Arms’

equipment. Defendants did not file any opposition to the motion for partial

summary judgment.

The trial court heard the motion on June 19, 2018. No one appeared on

behalf of Full Flash at this hearing. Dawn Carpenter attempted to appear on behalf

1 Roots Productions and Graham Norris, Jr. were subsequently dismissed voluntarily as defendants from the case.

19-CA-179 2 of her husband at the hearing, but Mr. Carpenter himself did not make an

appearance. Mr. Butler represented himself and disputed the factual assertions

made by Veteran Arms, particularly whether he had any ownership interest in Full

Flash.

Although the trial court heard argument from Mr. Butler and from counsel

for Veteran Arms, no witnesses testified and no additional evidence was

introduced by anyone at the hearing. At the hearing, the trial court orally ruled in

favor of Veteran Arms and against Full Flash.2 Additionally, the trial court found

that Veteran Arms provided sufficient evidence to warrant piercing the corporate

veil of Full Flash, and therefore rendered judgment against Mr. Carpenter and Mr.

Butler in their individual capacities. The trial court took the issue of attorney’s

fees under advisement. After ruling in favor of Veteran Arms, the court then

proceeded to make factual inquiries concerning identification of equipment that

was not recovered for the purposes of determining how much, if any, of the

$108,819.15 awarded should be considered part of Veteran Arms’ conversion

claim. Additionally, the trial court requested post-trial memoranda to provide

clarification as to which items of damages related to Veteran Arms’ conversion

claim and Unfair Trade Practices claim, and the appropriate amount of attorney’s

fees.

The trial court rendered its written judgment on August 27, 2018, granting

the motion for partial summary judgment, awarding $108,596.52 in damages and

$28,135.00 in attorney’s fees, and dismissing defendants’ reconventional demands

with prejudice.

2 At the time that it made its oral ruling, the trial court did not specify the dollar amount of the judgment in favor of Veteran Arms; however, its subsequent written judgment was for the full amount requested, less a $222.63 discrepancy that the trial court found between Mr. Misulia’s affidavit and the chart summarizing the ten items of damages claimed.

19-CA-179 3 On September 14, 2018, Full Flash and Mr. Carpenter filed a motion for new

trial. The memorandum in support of the motion included attached documents,

emails, invoices, and affidavits which purportedly contradicted the evidence put

forth at the hearing on the motion for partial summary judgment. On January 30,

2019, the trial court denied the motion for new trial. On February 5, 2019, the trial

court certified the August 27, 2018 partial judgment as final as contemplated by

La. C.C.P. art. 1915(B) and granted Full Flash and Mr. Carpenter a devolutive

appeal from that judgment.

DISCUSSION

Appellate courts review summary judgments de novo using the same criteria

that govern the trial court’s determination of whether summary judgment is

appropriate. In re Succession of O’Krepki, 16-50 (La. App. 5 Cir. 5/26/16), 193

So.3d 574, 577. After an adequate opportunity for discovery, 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

only documents that may be filed in support of or in opposition to the motion are

pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified

medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4).

The burden of proof rests with the mover. La. C.C.P. art. 966(D)(1). The

summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of every action and is favored in the law. La. C.C.P.

art. 966(A)(2). Even though the summary judgment procedure is favored, it is not

a substitute for a trial on the merits. Manis v. Zemlik, 11-799 (La. App. 5 Cir.

5/8/12), 96 So.3d 509, 512. Despite the legislative mandate that summary

judgments are favored, factual inferences reasonably drawn from the evidence

19-CA-179 4 must be construed in favor of the party opposing the motion, and all doubt must be

resolved in the opponent’s favor. Id.

Although Veteran Arms’ suit made claims against defendants alleging total

damages in the amount of $184,332.11, it filed its motion for partial summary

judgment seeking $108,819.15, contending that amount was the totality of its

claims “backed up by documentation.” In its memorandum in support of its

motion, it further explained that its “Motion for Partial Summary Judgment only

addresses the breach of contract and failure to render payment on an open account

portions of [its] claim against [defendants].”

In support of its motion, Veteran Arms attached the affidavit of Mr. Misulia

which identified ten separate items of alleged damages it sustained as a result of

defendants’ breach of their agreements. Each separate item included a stated dollar

amount for that item of damage, a brief description of the basis of the claim for that

item, and reference to an attached exhibit which purported to support that claim.

The total sum of these ten items of alleged damages is the $108,819.15 requested

by Veteran Arms in its motion for partial summary judgment. No other evidence

was introduced by Veteran Arms in support of its motion for partial summary

judgment.3

Upon our de novo review of Veteran Arms’ motion for partial summary

judgment, as supported only by the affidavit of Mr. Misulia and the exhibits

attached thereto, we conclude that there remain genuine issues of material fact

which preclude summary judgment as requested by Veteran Arms. The most

notable example of genuine issues of material fact relate to the single largest item

3 We particularly note that there was no further testimony from Mr. Misulia, either by way of deposition or live testimony at the hearing on the motion, to further explain or clarify the basis for each item of alleged damage. Although counsel for Veteran Arms, in its memorandum in support of the motion, expounded upon and provided further explanation for many of the claims, we note that the information contained in the argument of counsel but not contained in Mr. Misulia’s affidavit or the attached documents is not valid summary judgment evidence. We therefore do not consider additional facts provided in counsel’s arguments as evidence in our de novo review.

19-CA-179 5 of alleged damages in the amount of $33,600.00 for “training and advising

services,” which is nearly one-third of the total amount requested by Veteran Arms

in its motion for partial summary judgment.

The single paragraph of Mr. Misulia’s affidavit that relates to the “training

and advising services” agreement states:

Veteran Arms is owed $33,600.00 on the written contract for training and advising services signed by Charles Misulia and Bryan Carpenter. The written contract memorializing the agreement is attached as Exhibit J and is a true and accurate copy of the signed contract. Further, text messages on September 17, 2015 - September 19, 2015 and attached as Exhibit A confirm Full Flash’s acceptance of the trainers to be provided for the contract.

(emphasis added)

The contract for “training and advising services,” attached as Exhibit J,

indicates that it was signed by Mr. Misulia and Mr. Carpenter on September 22,

2015, and states that the services were “to begin on or around Sept 29th or as

determined and running at least through the end of the Battle of Fort Pillow

Sequences on Oct 22nd.” Furthermore, it does not contain a provision for

liquidated damages in the event of a breach of the agreement.

The email exchanges between Mr. Misulia and Mr. Carpenter indicate that

their communication and agreements broke down as of September 25, 2015, three

days after the signing of the “training and advising services” agreement. Mr.

Misulia’s affidavit indicates that he went to pick up certain equipment on

September 29, 2015, due to defendants’ alleged breach of their agreements, which

was before any of the “training and advising services” were to be provided. Mr.

Misulia does not allege in his affidavit that any “training and advising services”

were provided to the defendants, but rather that these services were to be provided.

Nor does Mr. Misulia’s affidavit allege that any costs were incurred by Veteran

Arms in preparation for providing “training and advising services.” Furthermore,

there is absolutely no explanation in Mr. Misulia’s affidavit as to why Veteran

19-CA-179 6 Arms would be entitled to the full value of the contract (i.e., both its unexpended

costs and its anticipated profit) for these future services that Veteran Arms never

rendered.

We similarly find genuine issues of material fact regarding Veteran Arms’

second largest item of alleged damages in the amount of $25,300.00 for the cannon

rental. The evidence submitted by Veteran Arms indicates that the majority of that

rental item was to be provided in October of 2015, and its supporting

documentation regarding that item is at best confusing as to why Veteran Arms

would be entitled to the full value of that contract.

Regarding the item of damages for the purchase of non-refundable uniforms

in the amount of $15,775.00, Veteran Arms provides no evidence that these

uniforms were delivered to or retained by defendants, thus raising the question as

to whether Veteran Arms is entitled, as a matter of law, to the full purchase price

of uniforms that it now retains. Although Mr. Misulia alleges that the purchase

price from his vendor is non-refundable, he makes no allegation that the uniforms

that Veteran Arms now retains have no value, nor does he provide an explanation

as to why Veteran Arms is entitled to an award for the full purchase price of those

uniforms while retaining ownership of them.

Additionally, we note that after receipt and review of Mr. Misulia’s affidavit

with the attached exhibits, which is the only evidence pertinent to the trial court’s

determination of whether genuine issues of material fact remain, together with a

supporting memorandum providing argument as to why Veteran Arms was entitled

to partial summary judgment, the trial court was compelled to request an additional

post-trial memorandum from Veteran Arms to further clarify which portions of its

claims related to conversion and Unfair Trade Practices. We agree with the

assessment made by the trial court at the time of the hearing on the motion for

partial summary judgment, that Mr. Misulia’s affidavit with attached exhibits

19-CA-179 7 leaves unanswered questions regarding Veteran Arms’ conversion and Unfair

Trade Practices claims.

Subsequent to the hearing, although Veteran Arms supplied the trial court,

by way of its post-trial memorandum, with additional argument regarding its

conversion and Unfair Trade Practices claims and its entitlement to attorney’s fees,

no additional evidence was supplied by Veteran Arms.4 Regardless of whether it

was proper for the trial court to rely upon subsequent argument of counsel to

resolve its unanswered questions regarding these claims, we find that there remain

genuine issues of material fact regarding these claims, such that it was error for the

trial court to reclassify a portion of the total award as damages for conversion and

Unfair Trade Practices and thereafter award attorney’s fees. Consequently, there

remains a question as to whether Veteran Arms is entitled, as a matter of law, to an

award of attorney’s fees.

CONCLUSION

Finding a number of genuine issues of material fact upon our de novo

review, we conclude that Veteran Arms is not entitled to partial summary judgment

as requested. Accordingly, we vacate the judgment of the trial court and remand

the case for proceedings consistent with our decision herein. In so doing, we note

that our decision does not vacate or in any way abrogate prior rulings and

judgments of the trial court holding defendants in contempt for their egregious

failure to comply with court-ordered discovery.

VACATED AND REMANDED

4 In its reasons for judgment, the trial court, apparently relying upon the argument of counsel in the post- trial memorandum, reclassified a portion of the $108,596.52 that it found constituted damages for Veteran Arms’ contractual claims, as damages for its conversion and Unfair Trade Practices claims, in the amounts of $8,331.50 and $81,494.06, respectively. Based upon these reclassifications, the trial court awarded Veteran Arms $28,135.00 in attorney’s fees, which were not otherwise provided for by any contractual provisions.

19-CA-179 8 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN 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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