Diamond D Property Investors, LLC v. TB Industries, LLC, Francis Fornier, Brian Heyse, and Heype Properties, LLC ( 2019 )

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
DIAMOND D PROPERTY NO. 2019 CW 0997
INVESTORS, LLC
VERSUS Page 1 of 2
TB INDUSTRIES LLC, FRANCIS
FORNIER, BRIAN HEYSE, AND DEC 17 2019
HEYPE PROPERTIES, LLC
In Re: Diamond D Property Investors, LLC, applying for
supervisory writs, 21st Judicial District Court,
Parish of Livingston, No. 158471.
BEFORE: McCLENDON, WELCH, HOLDRIDGE, CHUTZ, AND LANIER, JJ.
WRIT GRANTED. Those portions of the trial court' s December
18, 2018 judgment granting the exception of no cause of action
as to the claim of contractor misappropriation, privilege
against immovable property and as against the owner of the
property, and piercing the corporate veil are
hereby reversed.
Generally, an exception of no cause of action should not be
maintained in part and, if there are two or more theories of
recovery that arise out of the operative facts of a single
transaction or occurrence, a partial judgment on an exception of
no cause of action should not be rendered to dismiss a theory of
recovery. Based on our de novo review of relator' s petition, we
find that the claims against defendants arise out of the same
operative facts of a single transaction or occurrence. As such,
the trial court improperly sustained defendants' partial
objection of no cause of action,
thereby dismissing certain
theories of recovery. The exception of no cause of action is
hereby denied. See Everything on Wheels Subaru, Inc. v. Subaru
South, Inc., 615 So. 2d 1234 ( La. 1993).
That portion of the trial court' s December 18, 2018
judgment sustaining the exception of vagueness as to the claim
of unfair trade practices is likewise reversed. Relator' s
petition fairly informs defendants of the nature of that claim
and includes sufficient particulars to enable defendants to
prepare their defense. See Thomas v. Sonic, 2006- 0014 ( La. App.
1st Cir. 11/ 3/ 06), 950 So. 2d 822, 824- 825. The exception of
vagueness as to the trade is
unfair practices claim
hereby
denied.
While we find no error in that portion of the trial court' s
December 18, 2018 judgment the
denying general exception as to
vagueness of the entire petition, we reverse the portion of the
judgment that denied the exception without prejudice to allow
defendants to re -urge a similar claim as this litigation
progresses. The trial court has no authority to reserve such
exception, which must be filed in accordance with La. Code Civ.
P. arts. 926( A) and 928.
PMc
JEW
WRC
WIL
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
No. 2019 CW 0997
Page 2 of 2
Holdridge, J., concurs in part and dissents in part. I
agree with the majority' s actions on the exceptions of
vagueness. I disagree, however, with the majority' s denial of
the exception of no cause of action as to the claim of
contractor misappropriation, privilege against immovable
property and as against
the owner of the property, and piercing
the corporate veil. I think the majority is in error in not
allowing a partial exception of no cause of action in this case.
It is true that, prior to 1997, the cases did not allow a
judgment granting only a partial exception of no cause of
action.
See Everything on Wheels Subaru, Inc. v. Subaru South,
Inc., 616 So. 2d 1234 ( La. 1993). However, in 1997, the
legislature authorized a partial judgment that " sustains an
exception in part, as to one or more but less than all of the
claims, demands, issues, or theories against a party." La. Code
Civ. P. art. 1915( B)( 1). " This amendment ... authorizes a
judgment granting a partial exception of no cause of action;
importantly, this amendment provides certainty as to the
immediate appealability of such a judgment." Frank L. Maraist,
Louisiana Civil Law Treatise: Civil Procedure, Vol. I, § 6. 7,
pp. 172- 173 ( 2d ed. 2008).
COURT OF APPEAL, FIRST CIRCUIT
D PUTY LE OF COURT
FOR THE COURT