AE ENGINE AND COMPRESSION INC

Transcription

1 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1254 AE ENGINE AND COMPRESSION INC n VERSUS ynl M1SS LOU PETROLEUM LLC AVNA PETROLEUM NC REMNANT CAPITAL LLC HARVEST OIL GAS LLC THE HARVEST GROUP LLC AVNA AMER CA INC RONALD SUTTILL INDIVIDUALLY AND RUBEN SHEALY INDIVIDUALLY DATE OF JUDGMENT MAH ON APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT Ni 1MBER DIV J PARISH OF ST TAMMANY STATE OF LOUISIANA HONORABLE WILLIAM J KNIGHT JUDGE Crystal M Heine Grema Louisiana Peyton B Burkhalter Metairie Louisiana Counsel forplaintiff Appellant A E Engine and Compression Inc F Charles Marionneaux F Barry Marionneaux Ryan N Ours Plaquemine Louisiana Counsel for Defendants Appellees Remnant Capital LLC Ronald Suttill Miss Lou Petro eum LLC and Ruben Shealy Leo R McAloon III Brendan P Doherty New Orleans Louisiana Counsel for Defendant Appellees Miss Lou Petroleum LLC and Ruben Shealy Disposition REMANDED BEFORE PARRO KUHN AND McDONALD JJ AMENDED AND AS AMENDED AFFIRMED IN PART REVERSED IN PART

2 KUHN J Plaintiff appellant AE Engine and Compression Inc AE appeals the trial court s judgment sustaining peremptory exceptions raising the objections of no cause of action and no right of action and dismissing its claims against defendants appellees Miss Lou Petroleum LLC Miss Lou Ruben Shealy Remnant Capital LLC Remnant and Ronald Suttill For the reasons that follow we amend and as amended affirm in part reverse in part and remand PROCEDURAL BACKGROUND AE filed its petition on an open account seeking recovery for the value of the goods and services it provided at the request ofmiss Lou for the Breton Sound 31 Field Project located in Louisiana waters Specifically the petition avers that a Saltwater Disposal Pump Package which included an 817 Waukesha and Gaso Pump and an Oil Transfer Package which included a Deutz engine and oil pump had been supplied by AE at for the Breton Sound 31 Field Project When AE was unable to obtain full payment for the goods and services it had provided it filed its lawsuit naming as defendants Miss Lou and its managing member employee and agent Shealy in his individual capacity Aviva Petroleum Inc Aviva Petroleum the alleged operator and majority working interest owner of at least one well located in Breton Sound 31 Field Project at for which AE performed services and provided the goods Aviva America Inc and or The Harvest Group LLC Harvest the alleged owners and or operators of the well s Remnant a Although the petition appears to allege the existence of only one well other documentation in the record indicates that more than one oil well was associated with the Breton Sound 31 Field Project 2

3 I company that became involved to help finance Aviva Petroleum s production of the Breton Sound 31 Field Project and Suttill an agent and employee of Aviva Petroleum Aviva Petroleum and Aviva America Inc answered the lawsuit generally denying liability as did Harvest Remnant Suttill and Shealy filed peremptory exceptions raising the objection of no cause of action Miss Lou and Shealy filed peremptory exceptions raising the objection ofno right of action After a hearing the trial court sustained the peremptory exceptions filed by Remnant Suttill Shealy and Miss Lou and dismissed AEs claims against these defendants A new trial motion was denied AE appeals DISCUSSION The peremptory exception pleading the objection of no cause of action is a procedural device used to test the legal sufficiency of the petition In making the determination all well pleaded allegations offact in the petition must be accepted as true and no reference can be made to extraneous supportive or controverting evidence The court must then determine whether the law affords any relief to the claimant if those factual allegations are proven at trial Home Distribution Inc v DollarAmusement Inc p5la App 1st Cir So 2d A petition should not be dismissed for failure to state a cause of action unless The petition also names Harvest Oil Gas LLC as a defendant in this lawsuit as an alleged operator of the pump and avers to have made demands for payment from this defendant Harvest Oil Gas LLC joined Harvest in its answer to the lawsuit in which they admitted Harvest Oil Gas LLC is an affiliated company of Harvest Harvest and Harvest Oil Gas LLC also filed a cross claim naming Aviva Petroleum as defendant from whom they aver entitlement to indemnification 3 Curiously although Suttill is an agent of or an individual with an interest in Aviva Petroleum both he and Remnant are represented by the same counsel 3

4 it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle it to relief The question therefore is whether in the light most favorable to plaintiff and with every doubt resolved in its behalf the petition states any valid cause of action for relief Icl The burden of demonstrating that no cause of action has been stated is on the exceptor In reviewing a trial court s ruling sustaining an exception of no cause of action the reviewing court should subject the case to a de novo review Id The trial court sustained the exceptions of no cause of action raised by Remnant Suttill and Shealy and the no right of action raised by Miss Lou and Shealy and dismissed AEs claims against each of these defendants We examine the dismissal of each defendant in turn Remnant According to the allegations of AEs petition Remnant is a non Louisiana limited liability corporation doing business in the state of Louisiana and domiciled in the state of Washington Don Broyles an employee of Remnant advised AE that upon production of the well on or about June payment of the invoices for the goods and servicesae had provided on October at for the Breton Sound 31 Field Project would be made The petition also avers that Remnant advised AE that they became involved to help finance or otherwise purchase the debt o Aviva Petroleum s production of the Breton Sound 31 Field Project Lastly the allegations of the petition state that in a conversation between AE and Broyles as agent for Remnant AE was advised that after payment to the operator of the pump Aviva Petroleum would then pay its creditors including AE 4

5 In sustaining the exception of no cause of action as to Remnant the trial court concluded there were no allegations establishing privity of contract between AE and Remnant A contract is an agreement by two or more parties whereby obligations are created modified or extinguished La C art 1906 Consent of the parties is necessary to form a valid contract See La C art 1927 Where there is no meeting of the minds between the parties a contract is void for lack of consent Stockstill v CF Indus Inc p 25 La App lst Cir So 2d writ denied La So 2d 428 And no action for breach of contract may lie in the absence of privity of contract between the parties Pearl River Basin Land and Dev Co LC v State ex rel Governor soffice of Homeland Sec and Emergency Preparedness p2la App 1 st Cir So 3d A party claiming the existence of a contract has the burden of proving that the contract was perfected between himself and his opponent Casey v Nat linfo Services Inc p 12 La App lst Cir610 OS 906So 2d writ denied La So 2d 1235 Although AE asserts they have alleged facts sufficient to support the existence of a contractual relationship between it and Remnant we disagree Nothing in the factual allegations specifies that Remnant consented to pay the debts of Aviva Petroleum While AE states Broyles made representations that payment would be forthcoming it does not identify the party who Broyles indicated would tender the payment 5

6 AE urges that the facts give rise to recovery against Remnant under theories of detrimental reliance and unjust enrichment We agree with the trial court that the allegations of the petition do not set forth facts sufficient to support recovery under those or any other theories but under LaCP art 934AE must be given the opportunity to amend its petition to allege any additional facts necessary to state a cause of action Accordingly the judgment of the trial court sustaining Remnant sexception of no cause of action is amended to so permit Suttill Like Remnant the trial court concluded that the allegations of AEs petition failed to state a cause of action against Suttill because the facts did not demonstrate the existence of a contractual relationship between Suttill and AE for payment of the invoices for the goods and services provided on October at for the Breton Sound 31 Field Project AEs petition alleges that Suttill is a person of the full age of majority domiciled in the state of Texas who is an agent and employee of Aviva Petroleum Like the allegations concerning Broyles of Remnant the petition avers that Suttill as an agent of Aviva Petroleum advisedae that the operator of the pump would be paid first and subsequently all of Aviva Petroleum s creditors including AE would be paid Nothing in the factual allegations specifies that Suttill personally consented to pay the debts of Aviva Petroleum While AE acknowledges Suttill s capacity as an agent for Aviva Petroleum in averring his representation of payment to AE 4 According to La CP art 934 when the grounds of the objection pleaded by peremptory exception may be removed by amendment of the petition the judgment sustaining the exception shall so arder 6

7 subsequent to payment of the operator of the pump AE offers no facts establishing the date of disclosure of the agency status so as to support a theory of recovery based on undisclosed agency mandate As with Remnant AE fails to assert facts that Suttill made representations identifying the party who would tender the payment Thus the trial court correctly sustained Suttill s exception of no cause of action Under LaCP art 934AE must be given the opportunity to amend its petition to allege any additional facts necessary to state a cause of action against Suttill in his individual capacity Accordingly we affirm the trial court s judgment sustaining the exception of no cause of action after amending it to permit AE an opportunity to set forth facts that will support its entitlement to relief from Suttill Shealy Shealy asserts that the allegations of the petition directed at him are limited to actions he undertook while acting as a managing member employee or agent of Miss Lou Thus he urgesae has failed to establish a cause of action against him in his personal capacity According to the allegations of AEs petition Shealy is a person ofthe full age of majority domiciled in St Tammany Parish who is a managing member employee or agent of Miss Lou The petition avers that Miss Lou is a limited liability company registered and doing business in St Tammany Parish All actions undertaken by Shealy according to the petition were done in a representative capacity on behalf of Miss Lou 7

8 La RS addresses the liability of employees member managers employees and agents of limited liability companies stating in relevant part B Except as otherwise specifically set forth in this Chapter no member manager employee or agent of a limited liability company is liable in such capacity for a debt obligation or liability of the limited liability company D Nothing in this Chapter shall be construed as being in derogation of any rights which any person may by law have against a member manager employee or agent of a limited liability company because of any fraud practiced upon him because of any breach of professional duty or other negligent or wrongful act by such person or in derogation of any right which the limited liability company may have against any such person because of any fraud practiced upon it by him Because the allegations ofaes petition admit the limited liability status of I Miss Lou and Shealy s status as a managing member employee or agent of Miss Lou under La RS B Shealy cannot be liable in his individual capacity for a debt obligation or liability of Miss Lou See Hollingsworth u Choates 424 p4la App 2d Cir So 2d Thus the trial court correctly sustained Shealy s exception of no cause of action But because a managing member employee or agent may be held liable in his personal capacity because of any fraud breach of professional duty or other negligent or wrongful act he committed we amend the judgment dismissing AEs claims against Shealy to permit it an opportunity if it can to state a cause of action against this defendant See LaCP art 934 8

9 I Miss Lou AE contends the trial court erred in sustaining the peremptory exception raising the objection of no right of action levied against it by Miss Lou Miss Lou claims that because it was acting pursuant to a mandate AE is without a right to demand payment from it but must instead look to its principal Aviva Petroleum for payment A mandate is a contract by which a person the principal confers authority on another person the mandatary to transact one or more affairs for the principal La C art 2989 A principal may confer on the mandatary general authority to do whatever is appropriate under the circumstances La C art 2994 The mandatary may perform all acts that are incidental to or necessary for the performance of the mandate The authority granted to a mandatary to perform an act that is an ordina art of his rofession or calling or an act that follows from the p nature of his profession or calling need not be specified La C art 2995 A mandatary who contracts in the name of the principal within the limits of his authority does not bind himself personally for the performance of the contract La C art 3016 But a mandatary who contracts in his own name without disclosing his status as a mandatary binds himself personally for the performance of the contract La C art 3017 We begin by observing that Miss Lou sassertion that it was acting pursuant to a mandate and therefore is not bound to make payment to AE is not appropriately raised by the peremptory exception raising the objection of no right of action The exception of no right of action is intended to question the plaintiff s right to bring the suit by challenging its legal interest in the subject matter Gorman 9

10 v Swaggart 524 So 2d La App 4th Cir writs dertied 530 So 2d La 1988 It raises the question of whether a remedy afforded by law can be invoked by a particular plaintiff An exception of no right of action does not raise the issue of whether the remedy exists only who may assert it A challenge to the existence of a particular remedy is more properly raised by the peremptory exception raising the objection of no cause of action That exception questions whether the law grants a remedy to anyone for the particular harm alleged in the petition just as the exception of no right of action questions whether a particular plaintiff is a member of the class to whom the remedy is extended Gorman 524 So 2d at 919 In this case AE unquestionably has a right to sue those to whom it supplied a Saltwater Disposal Pump Package who did not pay for the goods and services AE provided See La C arts 2439 and 2549 see also La C art 1983 It was error for the trial court to sustain the exception of no right of action in favor of Miss Lou The real issue between these parties is whether AE may demand payment from Miss Lou Based on the allegations ofthe petition AE provided goods and services in October 2006 but was not apprised of the mandatary relationship existing between Miss Lou and Aviva Petroleum until March 2007 And that at the time AEs goods and services were requested Miss Lou contracted in its own name without disclosing its status as a mandatary potentially binding itself 5 AE also challenges the trial court s action ofsustaining the peremptory exception raising the objection of no right of action against Shealy Although we have already concluded the trial court correctly sustained the exception of no cause of action against Shealy in his individual capacity we also find the trial court erred in sustaining the exception of no right of action against Shealy in his individual capacity 10

11 I individually for the performance of the contract See La C art 3017 Thus AE has stated a cause of action against Miss Lou and the trial court erred in dismissing AEs claims against Miss Lou DECREE For these reasons that portion of the trial court s judgment sustaining the peremptory exceptions of no cause of action of Remnant Capital LLC Ronald Suttill and Shealy is affirmed but amended and the matter is remanded to the trial court to allowae an opportunity to amend its petition to state if it can a cause of action against these defendants within twenty one days from the date this opinion becomes final in default of which their claims shall be dismissed That portion of the trial court s judgment sustaining the peremptory exception of no right of action against Miss Lou and Ruben Shealy and dismissing AEs claims against Miss Lou is reversed The matter is remanded to the trial court for further proceedings consistent with this opinion Appeal costs are assessed one half to AE Engine and Compression Inc and one half to Miss Lou Petroleum LLC AMENDED AND AS AMENDED AFFIRMED IN PART REVERSED IN PART REMANDED 11