STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-331 c/w 11-332
ARC INDUSTRIES, L.L.C.
VERSUS
WILLIAM H. NUNGESSER
Consolidated with
WILLIAM NUNGESSER
MICHAEL B. MORENO, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2006-3028 C/W C-2008-3100 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Jimmie C. Peters, Judges.
AFFIRMED. George Pivach II Pivach, Pivach, Hufft, Thriffiley & Nolan, L.L.C. P. O. Box 7125 Belle Chasse, LA 70037 (504) 394-1870 Counsel for Defendant/Appellant: William H. Nungesser Gary Jude Russo Cade Aaron Evans Rachel Chance Jones, Walker, Waechter, Poitevent, Carrère, and Denègre, LLP P. O. Drawer 3408 Lafayette, LA 70502-3408 (337) 262-9000 Counsel for Defendants/Appellees: Dynamic Industries, Inc. Emile Dumesnil ARC Industries, L.L.C. Michael B. Moreno
Timothy Thriffiley Pivach, Pivach, Hufft, Thriffiley & Nolan, L.L.C. P. O. Box 7125 Belle Chasse, LA 70037 (504) 394-1870 Counsel for Defendant/Appellant: William H. Nungesser DECUIR, Judge.
In these consolidated cases, William H. Nungesser (Nungesser), appeals a
judgment of the trial court granting the peremptory exception of no cause of action
filed by defendant, Emile Dumesnil (Dumesnil).
FACTS
This matter arises out of a disputed consulting agreement between Nungesser
and a new company, later designated as Arc Industries, LLC (Arc), whereby
Nungesser was to provide consulting services to assist with Arc’s fledgling offshore
living quarters business. Nungesser alleges that the contract was negotiated by
Dumesnil. However, the letter of intent is signed by Mike Moreno (Moreno) as
representative of the new company. Though an actual draft consulting agreement
exists, it is not signed by the parties.
On November 11, 2005, in response to a request for payment from Nungesser, a
bookkeeping employee of Arc mistakenly issued a payment to Nungesser. Nungesser
was notified and refused to return the payment insisting that he was owed additional
compensation under the consulting agreement. Consequently, on June 16, 2006, Arc
filed suit in the Fifteenth Judicial District Court seeking declaratory judgment stating
that no contract existed between the parties and demanding a return of the payment.
Nungesser answered and filed a reconventional demand against Arc.
On December 18, 2006, Nungesser filed suit in the Twenty-Fifth Judicial
District Court, naming Moreno, Dynamic Industries, Inc. (Dynamic), and Dumesnil as
defendants. Moreno, Dynamic, and Dumesnil intervened. Nungesser’s suit was
ultimately transferred to the Fifteenth Judicial District Court and consolidated with
Arc’s suit. During the process, Nungesser filed supplemental reconventional demands
against the defendants, including Dumesnil. On December 22, 2009, Arc filed a motion for summary judgment on the
claims asserted by Nungesser. The trial court denied the motion.
On October 25, 2010, Dumesnil filed a peremptory exception of no cause of
action with respect to the consolidated suits. The trial court granted Dumesnil’s
exception dismissing Nungesser’s claims against Dumesnil with prejudice. Nungesser
lodged this appeal alleging the trial court erred in granting the exception and in
refusing to allow Nungesser to amend his pleadings to state a cause of action.
DISCUSSION
The issue on appeal is whether Nungesser’s petition and reconventional
demands state a cause of action against Dumesnil, in his individual capacity.
In Ramey v. DeCaire, 03-1299, pp. 7-8 (La. 3/19/04), 869 So.2d 114, 118-19,
the court discussed the peremptory exception of no cause of action:
A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiff’s right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Id. at 1235. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. Louisiana has chosen a system of fact pleading. La. C.C.P. art. 854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action. Montalvo at p. 6, 637 So.2d at 131. The burden of demonstrating that the petition states no cause of action is upon the mover. City of New Orleans v. Board of Com’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s 2 decision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans at p. 28, 640 So.2d at 253. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff’s behalf, the petition states any valid cause of action for relief. City of New Orleans at p. 29, 640 So.2d at 253. We have reviewed Nungesser’s pleadings, and, accepting all of the allegations
as true, we find that Nungesser has failed to allege facts sufficient to state a cause of
action against Dumesnil in his individual capacity.
Nungesser argues that his petition states a cause of action for conspiracy based
on his allegations that Moreno, Dumesnil, and Dynamic conspired to divert business
away from Arc and to Dynamic to avoid paying Nungesser’s commission.
Our colleagues in the fourth circuit recently discussed the cause of action for
conspiracy in Crutcher-Tufts Resources, Inc. v. Tufts, 2009-1572, p. 7 (La.App. 4 Cir.
4/28/10), 38 So.3d 987, 991:
Conspiracy by itself is not an actionable claim under Louisiana law. Ross v. Conoco, Inc., 2002-0299 (La.10/15/02), 828 So.2d 546. Instead, it is the “tort which the conspirators agreed to perpetrate and which they actually commit in whole or in part” that constitutes the actionable elements of a claim. Ross, 02-2009 at pp. 7-8, 828 So.2d at 552. La. C.C. art. 2324 provides: “He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.” In order to recover under a conspiracy theory of liability, a plaintiff must prove that an agreement existed to commit an illegal or tortious act; the act was actually committed and resulted in plaintiff’s injury; and there was an agreement as to the intended outcome or result. Butz v. Lynch, 97-2166 (La.App. 1 Cir. 4/8/98), 710 So.2d 1171. Similarly, Thomas v. North 40 Land Development, Inc., 04-0610 (La.App. 4 Cir.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-331 c/w 11-332
ARC INDUSTRIES, L.L.C.
VERSUS
WILLIAM H. NUNGESSER
Consolidated with
WILLIAM NUNGESSER
MICHAEL B. MORENO, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2006-3028 C/W C-2008-3100 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Jimmie C. Peters, Judges.
AFFIRMED. George Pivach II Pivach, Pivach, Hufft, Thriffiley & Nolan, L.L.C. P. O. Box 7125 Belle Chasse, LA 70037 (504) 394-1870 Counsel for Defendant/Appellant: William H. Nungesser Gary Jude Russo Cade Aaron Evans Rachel Chance Jones, Walker, Waechter, Poitevent, Carrère, and Denègre, LLP P. O. Drawer 3408 Lafayette, LA 70502-3408 (337) 262-9000 Counsel for Defendants/Appellees: Dynamic Industries, Inc. Emile Dumesnil ARC Industries, L.L.C. Michael B. Moreno
Timothy Thriffiley Pivach, Pivach, Hufft, Thriffiley & Nolan, L.L.C. P. O. Box 7125 Belle Chasse, LA 70037 (504) 394-1870 Counsel for Defendant/Appellant: William H. Nungesser DECUIR, Judge.
In these consolidated cases, William H. Nungesser (Nungesser), appeals a
judgment of the trial court granting the peremptory exception of no cause of action
filed by defendant, Emile Dumesnil (Dumesnil).
FACTS
This matter arises out of a disputed consulting agreement between Nungesser
and a new company, later designated as Arc Industries, LLC (Arc), whereby
Nungesser was to provide consulting services to assist with Arc’s fledgling offshore
living quarters business. Nungesser alleges that the contract was negotiated by
Dumesnil. However, the letter of intent is signed by Mike Moreno (Moreno) as
representative of the new company. Though an actual draft consulting agreement
exists, it is not signed by the parties.
On November 11, 2005, in response to a request for payment from Nungesser, a
bookkeeping employee of Arc mistakenly issued a payment to Nungesser. Nungesser
was notified and refused to return the payment insisting that he was owed additional
compensation under the consulting agreement. Consequently, on June 16, 2006, Arc
filed suit in the Fifteenth Judicial District Court seeking declaratory judgment stating
that no contract existed between the parties and demanding a return of the payment.
Nungesser answered and filed a reconventional demand against Arc.
On December 18, 2006, Nungesser filed suit in the Twenty-Fifth Judicial
District Court, naming Moreno, Dynamic Industries, Inc. (Dynamic), and Dumesnil as
defendants. Moreno, Dynamic, and Dumesnil intervened. Nungesser’s suit was
ultimately transferred to the Fifteenth Judicial District Court and consolidated with
Arc’s suit. During the process, Nungesser filed supplemental reconventional demands
against the defendants, including Dumesnil. On December 22, 2009, Arc filed a motion for summary judgment on the
claims asserted by Nungesser. The trial court denied the motion.
On October 25, 2010, Dumesnil filed a peremptory exception of no cause of
action with respect to the consolidated suits. The trial court granted Dumesnil’s
exception dismissing Nungesser’s claims against Dumesnil with prejudice. Nungesser
lodged this appeal alleging the trial court erred in granting the exception and in
refusing to allow Nungesser to amend his pleadings to state a cause of action.
DISCUSSION
The issue on appeal is whether Nungesser’s petition and reconventional
demands state a cause of action against Dumesnil, in his individual capacity.
In Ramey v. DeCaire, 03-1299, pp. 7-8 (La. 3/19/04), 869 So.2d 114, 118-19,
the court discussed the peremptory exception of no cause of action:
A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiff’s right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Id. at 1235. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. Louisiana has chosen a system of fact pleading. La. C.C.P. art. 854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action. Montalvo at p. 6, 637 So.2d at 131. The burden of demonstrating that the petition states no cause of action is upon the mover. City of New Orleans v. Board of Com’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s 2 decision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans at p. 28, 640 So.2d at 253. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff’s behalf, the petition states any valid cause of action for relief. City of New Orleans at p. 29, 640 So.2d at 253. We have reviewed Nungesser’s pleadings, and, accepting all of the allegations
as true, we find that Nungesser has failed to allege facts sufficient to state a cause of
action against Dumesnil in his individual capacity.
Nungesser argues that his petition states a cause of action for conspiracy based
on his allegations that Moreno, Dumesnil, and Dynamic conspired to divert business
away from Arc and to Dynamic to avoid paying Nungesser’s commission.
Our colleagues in the fourth circuit recently discussed the cause of action for
conspiracy in Crutcher-Tufts Resources, Inc. v. Tufts, 2009-1572, p. 7 (La.App. 4 Cir.
4/28/10), 38 So.3d 987, 991:
Conspiracy by itself is not an actionable claim under Louisiana law. Ross v. Conoco, Inc., 2002-0299 (La.10/15/02), 828 So.2d 546. Instead, it is the “tort which the conspirators agreed to perpetrate and which they actually commit in whole or in part” that constitutes the actionable elements of a claim. Ross, 02-2009 at pp. 7-8, 828 So.2d at 552. La. C.C. art. 2324 provides: “He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.” In order to recover under a conspiracy theory of liability, a plaintiff must prove that an agreement existed to commit an illegal or tortious act; the act was actually committed and resulted in plaintiff’s injury; and there was an agreement as to the intended outcome or result. Butz v. Lynch, 97-2166 (La.App. 1 Cir. 4/8/98), 710 So.2d 1171. Similarly, Thomas v. North 40 Land Development, Inc., 04-0610 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, held: “To establish a conspiracy, a plaintiff is required to provide evidence of the requisite agreement between the parties . . . stated otherwise, the plaintiff is required to establish a meeting of the minds or collusion between the parties for the purpose of committing wrongdoing.” Nungesser’s pleadings do not contain even the threshold allegation that
Dumesnil entered into any agreement to commit an intentional tort. There were no
allegations that an illegal or tortious act was committed that then resulted in the
plaintiffs’ alleged injury, or that there was any agreement as to the intended outcome
3 or result. As such, we find that Nungesser failed to state a cause of action for
conspiracy and we hold that the trial court did not err in granting the exception of no
cause of action.
Nungesser also argues that his pleadings state a cause of action for breach of
contract against Dumesnil. We disagree. Other than the allegation that Dumesnil
negotiated the alleged consulting agreement on behalf of Arc, there is no allegation
that Dumesnil was involved with the contract at all. We find no allegations that
would support a cause of action for breach of contract against Dumesnil in his
individual capacity.
Nungesser next asserts that his pleadings state a cause of action against
Dumesnil for unjust enrichment. Nungesser’s pleadings merely allege in a conclusory
fashion that the defendants collectively were unjustly enriched. This is insufficient to
support a cause of action against Dumesnil in his individual capacity.
Finally, Nungesser argues the trial court erred in refusing to allow him to
amend his pleadings to state a cause of action. Absent a showing that the trial court
committed manifest error or abused its discretion, in refusing to allow an amendment,
its decision will not be disturbed on appeal. Eagle Pipe and Supply, Inc. v. Amerada
Hess Corp., 09-0298 (La.App. 4 Cir. 2/10/10), 47 So.3d 428, writs granted, 10-2267,
10-2272, 10-2275, 10-2279, 10-2289 (La. 2/4/11), 56 So.3d 979, 981, 982. We find
no such error in this case.
DECREE
For the foregoing reasons, the judgment of the trial court in these consolidated
cases is affirmed. All costs of these proceedings are taxed to appellant, William H.
Nungesser.
AFFIRMED.