The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
10-1008
JAMES RONALD SAVOIE, ET AL.
VERSUS
ROMEL CHARLES, ET AL.
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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 84,791
HONORABLE HERMAN CLAUSE, DISTRICT JUDGE
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PHYLLIS M. KEATY
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Phyllis M. Keaty, Judges.
AFFIRMED.
Thomas K. Regan
Attorney at Law
Post Office Box 688
Crowley, Louisiana 70527-0688
(337) 783-7141
Counsel for Defendants/Appellees:
Thomas K. Regan
Cajun Environmental Services, Inc.
C. Luke Edwards
Attorney at Law
Post Office Box 3483
Lafayette, Louisiana 70502
(337) 233-9995
Counsel for Plaintiffs/Appellants:
James Ronald Savoie
Sandra Savoie
Jermaine D. Williams
Carolyn D. Deal
Attorneys at Law
108 West Congress Street
Lafayette, Louisiana 70501
(337) 235-3989
Counsel for Defendant/Appellee:
Romel Charles
Paul Ivan Guillory, Sr.
Post Office Box 269
Church Point, Louisiana 70525
Defendant - In Proper Person
Terry L. Lacombe
Post Office Box 132
Egan, Louisiana 70531
Defendant - In Proper Person
KEATY, Judge.
Plaintiffs, James Ronald Savoie and Sandra Savoie, appeal a judgment of the
trial court granting an exception of no cause of action filed by Defendant, Thomas K.
Regan, and dismissing Plaintiffs’ suit against him. Finding no error in the trial
court’s judgment, we affirm.
FACTS AND PROCEDURAL HISTORY
On July 24, 2006, Plaintiffs filed a Petition for Damages (the petition) in the
Fifteenth Judicial District Court, Parish of Acadia, naming as defendants Mr. Regan,
Romel Charles, Ivan Guillory, Terry Lacombe, and Cajun Environmental Services,
Inc. (Cajun).1 The petition alleged that:
In November of 2004, Petitioners purchased forty-eight (48) ten
yard containers, six (6) thirty yard containers, those particularly bearing
serial numbers 10642, 10543, 10644, 10645, 9815, 10012, and six (6)
forty yard containers, as well as the rights to use two tractors, more
particularly identified as a 1986 Mac Truck bearing VIN
1M2P140CGA013658, and a 1990 Peterbuilt Truck bearing VIN
9DWST7G39LC013000.
The bill of sale evidencing the above transaction was attached to the petition as
Exhibit A. The seller listed on the bill of sale was Rolloff Containers, L.L.C.
(Rolloff). Although the seller’s signature is illegible, Plaintiffs explained in their
brief to this court that Mr. Savoie entered into the bill of sale with Mr. Guillory on
November 12, 2004, so we will assume that Mr. Guillory signed the bill of sale on
behalf of Rolloff. The sale price for the containers was listed as $45,000. With
regard to the two trucks, the bill of sale provided that Rolloff agreed to rent them to
Mr. Savoie for one year from the date the contract was signed for the sum of “$0.00”
per month.
1
The petition alleged that Mr. Regan and Mr. Lacombe were the owners of Cajun; however,
it failed to disclose any further information about the remaining defendants.
1
Plaintiffs alleged that, subsequent to the time the bill of sale was signed,
Mr. Charles attempted to purchase the same property from Mr. Guillory. According
to the petition,
[a] meeting was held between Romel Charles, Ivan Guillory, and James
Savoie, wherein it was demand [sic] that Mr. Savoie relinquish his rights
or pay rental income to Romel Charles even though he had never
perfected the sale and despite Mr. Savoie’s rights not being
compromised by any subsequent sale of which all parties were aware.
Plaintiffs further alleged that Mr. Charles “subsequently stole” four of the six thirty-
yard containers that they owned. Next, Plaintiffs alleged that Mr. Regan and
Mr. Lacombe later approached Mr. Savoie about purchasing his equipment and the
rights to the Mac and Peterbuilt trucks but that when Mr. Savoie “did not accept the
purchase offer made by Mr. Regan on behalf of Cajun Environmental Services, Inc.,
Mr. Regan, in his capacity as an attorney, filed a Petition requesting the issuance [of]
a Writ of Sequestration.” Plaintiffs attached as Exhibit B to their petition copies of
the Petition for Recovery of Vehicles and Sequestration (the Sequestration Suit) filed
by Cajun in the Fifteenth Judicial District Court, Parish of Acadia, on August 8, 2005,
against Mr. Savoie and JPS Containers, L.L.C. (JPS),2 along with the Notice of
Seizure of the Mac and Peterbuilt trucks. According to Plaintiffs, “Mr. Regan
omitted in his petition for Sequestration that he was aware of Mr. Savoie having the
rights to the use of the two subject vehicles” even though “all parties, including Mr.
Regan, personally knew that the vehicles were encumbered by the rental agreement
as outlined in the Bill of Sale.”
In the petition filed in this matter, Plaintiffs claimed that as a result of the theft
by Mr. Charles and the fraudulent and/or wrongful seizure of the Mac and Peterbuilt
2
The Sequestration Suit does not disclose the relationship, if any, between Mr. Savoie and
JPS; it simply alleged that Mr. Savoie and JPS were in possession of the trucks owned by Cajun.
2
trucks by Cajun, Mr. Regan, and Mr. Lacombe, they sustained damages including
financial distress, loss of income, loss of good will, loss of contractual relations,
embarrassment, inconvenience, and emotional and mental distress.
Mr. Regan filed a peremptory exception of no cause of action in this matter on
November 30, 2007. Therein, Mr. Regan claimed that although the Plaintiffs’
petition named him as a defendant and alleged that he had filed a petition “in his
capacity as an attorney” on behalf of Cajun, the petition “states no causes of action
against him and makes no factual allegation which supports a blame [sic] or cause of
action against him.” Mr. Regan further contended that Plaintiffs’ petition was filed
as a separate claim for damages which cannot be filed absent a determination by the
court in the Sequestration Suit.
Plaintiffs filed a second supplemental and amending petition for damages on
March 7, 2008.3 The only changes made therein applicable to Mr. Regan were that
paragraph one of the petition was amended to name him as a defendant both
“individually, and is his representative capacity of Cajun,” and to eliminate the
language in paragraph nine to the effect that Mr. Regan had filed the Sequestration
Suit “in his capacity as an attorney.”
After being reset several times for various reasons, the exception was
scheduled for hearing on April 19, 2010. On April 5, 2010, counsel for Plaintiffs
filed a notice of conflict into the record indicating that he had a conflict with the
hearing date of the exception due to a previously set motion in St. Landry Parish. The
3
Plaintiffs state in their appellate brief that a first supplemental and amending petition “was
filed relative to incidental matters not related to the exception filed on behalf of Mr. Regan.”
Moreover, we note that although Plaintiffs filed a copy of a first supplemental and amending petition
for damages with the trial court by facsimile transmission on January 22, 2008, according to the
appeal record, no original pleading bearing that title was ever filed into the record. Accordingly, that
facsimile filing is deemed to have no force or effect. See La.R.S. 13:850. The second supplemental
and amending petition was properly filed and is contained in the appeal record.
3
notice did not contain an order requesting that the hearing on the exception be reset.
According to the transcript of the April 19, 2010 hearing, Mr. Regan appeared in
proper person and, although counsel for Plaintiffs was not present, he faxed a letter
to the trial court indicating that he agreed to submit the matter on written briefs.4
After brief argument, the trial court indicated that it would grant the exception filed
by Mr. Regan. Written judgment was rendered later that day granting Mr. Regan’s
exception of no cause of action and dismissing Plaintiffs’ suit against him, personally,
at their cost.
Plaintiffs timely appealed and are before this court assigning the following
errors:
1. The [Trial] Court erred as a matter of law in sustaining the
Exception of No Cause of Action filed on behalf of Mr. Thomas
Regan.
2. The Trial Court erred in ruling that an attorney is somehow
immune from responsibility for damages when that attorney
misrepresents or omits facts to a Judge resulting in damages.
3. Regardless, the Trial Court erred in sustaining the peremptory
exception no cause of action without ordering an amendment of
the pleadings when the amendment could have remedied the
peremptory exception as provided for by La.Code Civ.P. art. 934.
DISCUSSION
Our supreme court discussed the exception of no cause of action in Wright v.
Louisiana Power & Light, 06-1181, pp. 14-15 (La. 3/9/07), 951 So.2d 1058, 1068-69
(quoting Ramey v. DeCaire, 03-1299, pp. 7-8 (La. 3/19/04), 869 So.2d 114, 118-19):
4
Although a copy of Plaintiffs’ memorandum in opposition to Mr. Regan’s exception of no
cause of action is attached to Mr. Regan’s appellate brief, the record on appeal does not contain any
memoranda in support of or in opposition to the exception. Because courts of appeal are courts of
record, we have no authority to consider Plaintiffs’ memorandum. See Murray v. Town of Mansura,
06–355 (La.App. 3 Cir. 9/27/06), 940 So.2d 832, writ denied, 06-2949 (La. 2/16/07), 949 So.2d 419,
cert. denied, 552 U.S. 915, 128 S.Ct. 270, 169 L.Ed.2d 197 (2007). This fact is of no moment,
however, because an exception of no cause of action is to be decided on the face of the petition. See
Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127.
4
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
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.
Did the trial court err in sustaining Mr. Regan’s Exception of No Cause of Action?
Plaintiffs contend that Mr. Regan was acting “in his owner capacity when he
began to attempt to acquire property that was the subject of a lease.” Referring to
their second supplemental and amended petition wherein they alleged that
“Mr. Regan omitted in his Petition for Sequestration that he was aware of Mr. Savoie
having the rights to the use of the two subject vehicles and as presented to the Court
5
appeared that the relief requested was warranted,” Plaintiffs argue that they have
sufficiently alleged that Mr. Regan is liable to them for having made
misrepresentations to the court and for committing ill practices. Plaintiffs submit that
“[n]o corporate veil should cloister an attorney from personal responsibility” for
engaging in such ill practices.
Mr. Regan counters that he was acting in a representative capacity as an
attorney for Cajun, a corporation, when he filed the Sequestration Suit, a fact which
Plaintiffs clearly noted in their original and supplemental petitions. Mr. Regan
further submits that Plaintiffs’ claim, in their appellant brief, that he committed
personal wrongdoing, was never presented to the trial court. To the extent that the
Plaintiffs claim that he is guilty of fraud or misconduct, Mr. Regan argues that despite
their having twice amended their petition, Plaintiffs failed to state with particularity
any specific factual basis for such claim.5
Applying the principles enunciated in Wright to the petitions filed in this case,
we conclude that Plaintiffs failed to state a cause of action against Mr. Regan
personally. Although it was not necessary for Plaintiffs to plead the theory of their
case against Mr. Regan, their petitions needed to set forth the material facts upon
which their cause of action against him were based. Instead of alleging any such
facts, Plaintiffs’ petitions simply made unsubstantiated conclusions that Mr. Regan
had somehow acted improperly and misled the court when he filed the Sequestration
Suit.
In their original petition, Plaintiffs alleged that they had the right to use the
Mac and Peterbuilt trucks, and they claimed that Mr. Regan acted improperly in filing
5
Louisiana Code of Civil Procedure Article 856 provides, in part, that “[i]n pleading fraud
or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity.”
6
the Sequestration Suit against them to regain possession of the trucks. It is clear to
this court that Mr. Regan filed the Sequestration Suit in his representative capacity
as attorney for Cajun. Plaintiffs alleged that Mr. Regan misled the court by omitting
in the Sequestration Suit his knowledge that Plaintiffs had the right to use the two
trucks pursuant to the Bill of Sale attached to their petition. On the other hand, Cajun
attached to the Sequestration Suit two title certificates that showed that it was the
registered owner of the two trucks. Nowhere in any of their petitions do Plaintiffs
explain how Mr. Guillory or Rolloff acquired the right to lend them the two trucks
owned by Cajun. If the Plaintiffs had any such explanation, they should have
provided it in response to the Sequestration Suit and/or they should have provided it
to the trial court in this matter in response to Mr. Regan’s exception of no cause of
action. They failed to do so. The trial court did not err in sustaining Mr. Regan’s
exception of no cause of action.
Did the trial court err in failing to allow Plaintiffs leave to amend their petition?
Citing La.Code Civ.P. art. 934,6 Plaintiffs allege that even if the trial court did
not err in sustaining Mr. Regan’s exception of no cause of action, they should have
been afforded the opportunity to amend their petition to correct any deficiencies.
A trial court is vested with discretion when deciding whether to allow
amendment of the petition after it sustains a peremptory exception and it is not
required to allow such amendment when to do so would be a vain and useless act.
6
Louisiana Code of Civil Procedure Article 934 provides as follows:
When the grounds of the objection pleaded by the peremptory exception may
be removed by amendment of the petition, the judgment sustaining the exception
shall order such amendment within the delay allowed by the court. If the grounds of
the objection raised through the exception cannot be so removed, or if the plaintiff
fails to comply with the order to amend, the action, claim, demand, issue, or theory
shall be dismissed.
7
Broussard v. F.A. Richard & Assocs., Inc., 99-10 (La.App. 3 Cir. 5/5/99), 740 So.2d
156, writ denied, 99-1048 (La. 6/4/99), 744 So.2d 625 (trial court did not abuse its
discretion in not allowing plaintiff to amend her petition after it sustained defendant’s
exception of no cause of action where plaintiff had already filed three supplemental
and amending petitions in response to defendant’s exception). “[Louisiana Code of
Civil Procedure] Article 934 does not require that the plaintiff be provided the
opportunity to speculate on unwarranted facts merely for the purpose of defeating the
exception. The right to amend one’s petition is qualified by the restriction that the
objections to the petition be curable.” Id. at 160 (citation omitted).
Counsel for Plaintiffs did not appear at the hearing on Mr. Regan’s exception
of no cause of action. Instead, according to the transcript from the April 19, 2010
hearing, he apparently faxed a letter to the trial court stating that he was willing to
submit the matter on briefs.7 In addition, Plaintiffs have already twice amended their
petition and have yet to state a valid cause of action against Mr. Regan in his personal
capacity. Given the circumstances, we cannot say that the trial court abused its
discretion in dismissing Plaintiffs’ suit against Mr. Regan without allowing Plaintiffs
the opportunity to again amend their petition.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed in its
entirety. All costs of this appeal are assessed to Plaintiffs, James Ronald Savoie and
Sandra Savoie.
AFFIRMED.
7
No such letter appears in the record on appeal. However, the transcript indicates that the
trial court did receive the letter after the trial judge’s law clerk tried to contact Plaintiffs’ attorney
when the matter was called for hearing and he was not present.
8