Wegmann v. Tramontin

186 So. 3d 236, 2015 La.App. 4 Cir. 0561, 2016 La. App. LEXIS 45, 2016 WL 157150
CourtLouisiana Court of Appeal
DecidedJanuary 13, 2016
DocketNo. 2015-CA-0561
StatusPublished
Cited by5 cases

This text of 186 So. 3d 236 (Wegmann v. Tramontin) 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
Wegmann v. Tramontin, 186 So. 3d 236, 2015 La.App. 4 Cir. 0561, 2016 La. App. LEXIS 45, 2016 WL 157150 (La. Ct. App. 2016).

Opinion

ROLAND L. BELSOME, Judge.

1!Appellant, Cynthia Wegmann, appeals a judgment of the Civil District Court for the Parish of Orleans .dismissing her Petition for Damages and granting appellee’s [238]*238Peremptory Exception of No Causes of Action. We affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Wegmann and Mr. Gregory Tra-montin are former husband and wife, whose community property was partitioned in 1988. During their marriage, the parties started U.S. Agencies Insurance Co. (“U.S. Agencies”), which became part of the community owned by them. In 1994, Ms. Wegmann sued Mr. Tramontin alleging that he had made fraudulent representations to her regarding the value of U.S. Agencies.1 Specifically, Ms. Weg-mann filed suit to rescind the sale of her interest in the property to Mr. Tramontin and, after a trial on the merits, she was awarded monetary damages. On appeal, however, it was found that Ms. Wegmann’s claims had prescribed, and her case was dismissed. See Tramontin v. Tramontin, 2004-2286 (La.App. 1 Cir. 12/22/05); 928 So.2d 29. That litigation is 12not the subject of the instant lawsuit; however, it is pertinent to the questions before this Court.

The issue before this Court arises out of an oral contract allegedly confected on April 18, 2010 between Ms. Wegmann and Mr. Tramontin. The agreement purportedly reached between the parties obligated Ms. Wegmann to willingly' support Mr. Tramontin in his pending divorce litigation in East Baton Rouge Parish with his then-wife, who is not a party to this action. In return, Mr. Tramontin was to “transfer to [Ms. Wegmann] the $3,000,000.00 to $5,000,000.00 for her ownership in U.S Agencies Insurance Co.,” the insurance company at dispute in the parties’ previous suit. Further, it was agreed that “the first portion of the $3,000,000.00 would be tendered to [Ms. Wegmann] after she sold the house she was living in,” and thereafter the “amounts remaining of the “$3,000,-000.00 to $5,000,000.00 would be tendered on an as needed basis.”

It is undisputed that Ms. Wegmann satisfied her obligations in the alleged contract by being “available to testify truthfully at [Mr. Tramontin’s] divorce litigation,” supporting him “in his divorce action by among other things attending some of the court hearings in Baton Rouge, Louisiana,” and selling her house. Additionally, Mr. Tramontin does not deny that he failed to provide Ms. Wegmann with the compensation for which she claims he contracted. Accordingly, Ms. Wegmann filed suit claiming that Mr. Tramontin is liable for “breach of contract and fraud,” seeking specific performance on the contract.2

| sIn response, Mr. Tramontin pled the exceptions of Prescription, Res Judicata, No Cause of Action, and Vagueness.3 The trial court granted the exception of no [239]*239cause of action and dismissed Ms. Weg-mann’s petition with prejudice.

ASSIGNMENTS OF ERROR

Ms..Wegmann assigns two errors:

1. The signed judgment and the court’s oral reasons are inconsistent.
2. In granting the Exception of No Cause of Action, the trial court erred by not finding that Ms. Weg-mann and Mr. Tramontin perfected an enforceable, verbal contract. Alternatively, if the court correctly concluded the Petition did not properly state a cause of action, the court was obligated to provide Ms. Weg-mann sufficient time to properly state a cause of action.

STANDARD OF REVIEW

This court, reviews a trial court’s decision sustaining an exception of no cause of action de novo. McKamey v. New Orleans Public Facility Management, Inc., 2012-0716, p. 6 (La.App. 4 Cir. 9/19/12), 102 So.3d 222, 226, The exception of no cause of action tests the legal sufficiency of a petition by examining whether, based upon-the facts alleged within the four corners of the petition, the law affords the plaintiff a remedy. La. C.C.P. art. 927(A); see also Meckstroth v. Louisiana Dept. of Transp. and Development, 07-0236, p. 2 (La.App. 4 Cir. 6/27/07), 962 So.2d 490, 492, citing Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235-36 (La. 1993). Additionally, in the absence of a showing of | ¿manifest error or an abuse of discretion, a trial court’s finding that the grounds for an exception of no cause of action cannot be removed by amendment should not be disturbed on appeal. Whitney Nat. Bank v. Jeffers, 573 So.2d 1262, 1265 (La.App. 4th Cir.1991).

DISCUSSION

I. Assignment of Error Number I

First, Ms. Wegmann asserts that the trial court’s judgment was inconsistent with .the court’s oral reasons, in that the court’s comments from the bench suggested that the case was dismissed on the basis of prescription and res judicata, neither of which applies to her claims. This argument primarily focuses on statements made by the trial court during, a colloquy in which the trial court asked, “What is the consideration for this verbal contract that you’re alleging existed?” Unconvinced by the argument that Mr. Tramontin contracted based on a “moral obligation to give her the money,” the trial court retorted as follows:

Well, if the contract is based upon a moral consideration on the defendant’s part, -he’ll have to answer to a higher authority than me if he violates that. But for purposes of the law of the State of Louisiana I have to grant the Exception. It’s prescribed. It’s res judicata.

The trial court’s statement “It’s prescribed” refers to the prescribed debt (Ms. Wegmann’s share of U.S Agencies)upon.which Mr. Tramontin relied in asserting his exception of no cause of action. In full context, there is no conflict in the trial court’s judgment - and its comments from the bench. Even if there were, this Court has recognized that where there is a conflict between the judgment and its written reasons, the judgment controls. See Arbourgh v. Sweet Basil Bistro, Inc., 98-2218, p. 14 (La.App. 4 Cir. 5/19/99); 740 So.2d 186, 192, writ denied, 99-2942 | s(La. 12/17/99); 751 So.2d 883. The same reasoning applies where there is a conflict between a written judgment and oral reasons for judgment. Slaughter v. Bd. Of Sup’rs of S. Univ. & Agr. & Mech. Coll., 2010-1049, p. 37 (La.App. 1 Cir. 8/2/11); 76 So.3d 438, 459, writ denied, 2011-2110 [240]*240(La.1/13/12); 77 So.3d 970; see also Hebert v. Hebert, 351 So.2d 1199, 1200 (La.1977). Consequently, there is no merit to Ms. Wegmann’s first assignment of error,

II. Assignment of Error Number II

a) An oral contract to pay a prescribed debt is unenforceable. .

In her petition, Ms. Wegmann- alleged that the parties herein entered into a verbal contract whereby she agreed to “support [Mr. Tramontin]- in his pending divorce litigation in East Baton Rouge Parish; and, he-would transfer to'her the $3,000,000.00 to $5,000,000.00 for her ownership in U.S. Agencies Insurance Co.” However, on appeal, Ms. Wegmann claims that the purported contract at issue was not to pay said debt, but a contract to pay her ■ “a minimum of $3,000,000.00 if she would sell the home she was then living in and assist [Mr. Tramontin] in the pending litigation with his current wife.”

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186 So. 3d 236, 2015 La.App. 4 Cir. 0561, 2016 La. App. LEXIS 45, 2016 WL 157150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wegmann-v-tramontin-lactapp-2016.