Melanie King, Danielle Davis, and Brittany Fox Versus Blue Haven Pools of Louisiana Inc. and Robert Namer

MELANIE KING, DANIELLE DAVIS, AND NO. 21-CA-189
BRITTANY FOX
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
BLUE HAVEN POOLS OF LOUISIANA INC.
AND ROBERT NAMER STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 800-377, DIVISION "G"
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
December 22, 2021
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and Stephen J. Windhorst
VACATED AND REMANDED
FHW
RAC
SJW
COUNSEL FOR PLAINTIFF/APPELLANT,
MELANIE KING, DANIELLE DAVIS, AND BRITTANY FOX
Laura L. Catlett
Jessica M. Vasquez
COUNSEL FOR DEFENDANT/APPELLEE,
BLUE HAVEN POOLS OF LOUISIANA INC. AND ROBERT NAMER
Bernard A. Dupuy
David I. Courcelle
Scott C. Stansbury
WICKER, J.
This is an action by plaintiffs-appellants, Melanie King, Danielle Davis, and
Brittany Fox against defendants-appellees Blue Haven Pools of Louisiana, Inc. and
Robert Namer seeking damages and compensation in connection with employment-
related causes of action. On appeal, the former employees, Ms. King, Ms. Davis, and
Ms. Fox seek review of the November 5, 2020 judgment sustaining Blue Haven’s
exceptions of prematurity, no cause of action, and no right of action. Blue Haven
filed the exceptions asserting that the lawsuit filed jointly by the former employees
were premature since the claims asserted within the petition must be arbitrated
pursuant to executed employment agreements. Because we find that the trial court
improperly considered evidence not offered and introduced, we vacate the
November 5, 2020 judgment on appeal and remand the matter for further
proceedings.
Factual and Procedural Background
On October 10, 2019, Melanie King, Danielle Davis, and Brittany Fox filed a
Petition for Damages against their former employer Blue Haven Pools of Louisiana,
Inc. and their supervisor Robert Namer (hereinafter collectively “Blue Haven”), who
owned the business specializing in constructing and remodeling swimming pools. In
the Petition, Ms. King, Ms. Davis, and Ms. Fox alleged claims for negligent
supervision/retention, breach of contract, intentional infliction of emotional distress,
sexual assault and sexual battery for incidents that occurred during their respective
employment1 with Blue Haven while under the supervision of the owner Robert
Namer. Thereafter, on February 26, 2020, Blue Haven filed one responsive pleading
to except to the petition captioned “Dilatory Exception of Prematurity and
1
According to the petition, King was employed with Blue Haven during March 2019 through August 2019
as an administrative assistant. Fox was also employed as an administrative assistant for Blue Haven in June
2019 until an undisclosed period of time. Davis reported being employed as a sales representative for Blue
Haven from December 2017 until she was discharged on October 14, 2018.
21-CA-189 1
Peremptory Exceptions of No Cause of Action and No Right of Action to Compel
Arbitration and Request for Attorney Fees and Costs.”2 The exceptions were asserted
on the basis that plaintiffs’ claims must be arbitrated pursuant to employment
agreements executed by the plaintiffs. In support of its exceptions, Blue Haven
attached to the pleading the general Employment Agreements for Ms. Davis and Ms.
Fox. It also attached the Sales Personnel Employment Agreement for Ms. Davis.
However, no employment agreement or contract was attached for Ms. King.
At the hearing, on October 7, 2019, the trial court dismissed the former
employees’ petition and sustained Blue Haven’s “Dilatory Exception of Prematurity
and Peremptory Exceptions of No Cause of Action and No Right of Action to
Compel Arbitration”3 and granted its request for attorney fees and costs.4 On
November 5, 2020, the trial court rendered a judgment dismissing the plaintiffs’
claims. Ms. King, Ms. Davis, and Ms. Fox appeal the November 5, 2020 judgment.
Law and Analysis
On appeal, the central issue raised as error by appellants before this Court is
whether the arbitration provisions of the general Employment Agreements are valid
and enforceable. However, we do not reach the merits of this appeal because we find
that the trial court erroneously considered evidence not properly before the court.
Specifically, the general Employment Agreements and Sales Personnel Employment
Agreement considered by the trial court and referenced as a determining factor in
rendering its judgment were never offered or introduced into evidence at the October
7, 2019 hearing.
2
Blue Haven’s pleading also included in the caption “in the alternative, Exceptions of Improper
Cumulation of Actions and/or Misjoinder of Parties, and No Cause of Action and No Right of Action”, all
of which were asserted based on plaintiffs’ failing to state a cause on which relief could be granted.
3
We acknowledge that Blue Haven referred to its Peremptory Exceptions of No Cause of Action and No
Right of Action as “to Compel Arbitration.” It is unclear from the exceptions and the record what is meant
by “to Compel Arbitration. However, it is well-settled that an exception is treated as it actually is, not what
it is titled. Standtlander v. Ryan's Family Steakhouses, Inc., 34,384 (La. App. 2 Cir. 4/4/01), 794 So.2d 881,
886, writ denied, 01–1327 (La.6/22/01), 794 So.2d 790, questioned on other grounds as stated in Arkel
Constructors, Inc. v. Duplantier & Meric, Architects, L.L.C., 06–1950 (La. App. 1 Cir. 7/25/07), 965 So.2d
455.
4
The trial court also ruled that Blue Haven’s remaining exceptions, pled in the alternative, were moot.
21-CA-189 2
Blue Haven may introduce evidence to prove the existence of a valid contract
with a binding arbitration clause in connection with its exception of prematurity and
no right of action when such information is absent from the petition. However, in
the instant matter, review of the minute entry and the transcript of the proceedings
reveals that Blue Haven failed to properly introduce and admit evidence at the
exception hearing.
Pursuant to La. C.C.P. art. 2164, an appellate court must render judgment
upon the record on appeal. The record on appeal is that which is sent by the trial
court to the appellate court and includes the pleadings, court minutes, transcript,
judgments, and other rulings, unless otherwise designated. La. C.C.P. arts. 2127 and
2128. Deutsche Bank Nat'l Tr. Co. ex rel. Morgan Stanley ABS Capital I, Inc. v.
Carter, 10–663 (La. App. 5 Cir. 01/25/11), 59 So.3d 1282, 1285.
It is well-settled within Louisiana jurisprudence that documents attached to
memoranda of law submitted in connection with a peremptory exception do not
constitute evidence and cannot be considered on appeal. Caro v. Bradford White
Corp., 96-120 (La. App. 5 Cir. 7/30/96), 678 So.2d 615, 618. Evidence not properly
and officially offered and introduced at the hearing on a peremptory exception
cannot be considered, even if it is physically placed in the record. La. C.C.P. art.
931.
In the case at bar, the trial court considered the general Employment
Agreements and a Sales Personnel Employment Agreement annexed to Blue
Haven’s exceptions. A review of the record reveals that the agreements at issue were
never offered and introduced into evidence. Thus, we find that the trial court
erroneously considered evidence not properly offered and introduced at the October
7, 2019 hearing on Blue Haven’s exceptions and improperly relied upon that
evidence in rendering its judgment to sustain the exceptions and to award attorney’s
fees and costs to Blue Haven.
21-CA-189 3
We further point out that an exception of no cause of action may be considered
without any evidence offered and introduced by defendant, and thus, we now review
this exception.
An appellate court reviews the judgment sustaining a peremptory exception
of no cause of action de novo, because the exception raises a question of law and the
trial court's decision is based only on the sufficiency of the petition. Succession of
Gendron, 17-216 (La. App. 5 Cir. 12/27/17), 236 So.3d 802, 807; citing Guidry v.
Hanover Ins. Co., 09-220 (La. App. 5 Cir. 11/10/09), 28 So.3d 426, 429 (internal
citations omitted). An exception of no cause of action asks whether the law extends
a remedy to anyone under the factual allegations of the petition, while an exception
of no right of action5 questions whether the plaintiff belongs to the particular class
to which the law grants a remedy for the particular harm alleged. Pitre v. Dufrene,
98-570 (La. App. 5 Cir. 12/29/98), 726 So.2d 81. No evidence may be introduced to
support or controvert an exception raising the objection of no cause of action, and
for the purpose of determining the issues raised by the exception, all facts well-
pleaded in the petition must be accepted as true. Show-Me Const., LLC v. Wellington
Specialty Ins. Co., 11-528 (La. App. 5 Cir. 12/29/11), 83 So.3d 1156, 1159.
In the petition, plaintiffs’ assert various causes of action, including negligent
supervision/retention, breach of contract, intentional infliction of emotional distress,
sexual assault and sexual battery for incidents that occurred during their respective
employment with Blue Haven. Blue Haven excepts to the petition by asserting the
exception of no cause of action on the basis that an agreement to arbitrate plaintiffs’
claims exist, the agreements must be enforced, the claims must be adjudicated via
5
Unlike the no cause of action exception, evidence is admissible to support or controvert the objection of
no right of action when the grounds thereof do not appear from the petition. Louisiana Shrimp Ass'n v.
Wayne Estay & Wayne Estay Shrimp Co., 05-29 (La. App. 5 Cir. 5/31/05), 905 So.2d 431,434. However,
documents attached to memoranda do not constitute evidence and cannot be considered such on appeal.
Jackson v. United Servs. Auto. Ass'n Cas. Ins. Co., 08-333 (La. App. 5 Cir. 10/28/08), 1 So.3d 512, 515.
As more fully discussed above, Blue Haven failed to offer and introduce the agreements attached to its
exceptions, and we cannot consider the agreements as to this assertion.
21-CA-189 4
arbitration, and this matter must be dismissed. It argues that the petition states that
plaintiffs contracted with it by executing an employment agreement which contained
a valid, enforceable and binding arbitration clause. We disagree. Upon review, the
petition is devoid of any mention of or reference to an arbitration agreement.
Although plaintiffs have asserted within the petition that they entered into a contract
with defendants to perform a job and that defendant breached that contract such that
relief under contractual theories is warranted, review of the record shows the
contracts of employment are absent from the petition and the record.
Our Supreme Court has explained that an objection may be raised by an
exception of no cause of action, a peremptory exception which can be pleaded at any
time, because the party has no cause of action at law when the contract expressly
required settlement of contractual controversies and claims by arbitration.
Matthews–McCracken Rutland Corp. v. City of Plaquemine, 414 So.2d 756, 758
(La. 1982).
In Ackel v. Ackel, 97–70 (La. App. 5 Cir. 5/28/97), 696 So.2d 140, 143, writ
denied, 97–2139 (La.11/21/97), 703 So.2d 1310, this Court considered a judgment
granting an exception of no cause of action based on an arbitration provision in an
agreement. In that case, the petition did not mention the arbitration provision. We
held: “A proper vehicle to raise this issue would have been the Exception of Lack of
Subject Matter Jurisdiction or a Motion for Summary Judgment, since the
introduction of evidence is permissible with those pleadings, whereas the court may
only consider the four corners of the petition when ruling on the Exception of No
Cause of Action.” Id.Since the record is absent of any employment agreements and any agreements
with an arbitration provision, the petition is devoid of any mention of an arbitration
agreement, and Blue Haven failed to offer and introduce evidence in support of its
21-CA-189 5
other exceptions previously discussed, we find that the trial court erred in sustaining
Blue Haven’s exceptions.
Accordingly, we vacate the October 7, 2019 judgment sustaining exceptions
in favor of Blue Haven and awarding attorney’s fees and costs, and remand this
matter for further proceedings.
VACATED AND REMANDED
21-CA-189 6
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 22, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
21-CA-189
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)
JESSICA M. VASQUEZ (APPELLANT) LAURA L. CATLETT (APPELLANT) BERNARD A. DUPUY (APPELLEE)
SCOTT C. STANSBURY (APPELLEE)
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