Julie Gordon Kitziger Versus Michael F. Mire

JULIE GORDON KITZIGER NO. 19-C-87

VERSUS FIFTH CIRCUIT

MICHAEL F. MIRE COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 765-038, DIVISION "O"
HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

September 24, 2019

ROBERT A. CHAISSON
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Robert A. Chaisson

WRIT GRANTED
RAC
FHW
MEJ

COUNSEL FOR PLAINTIFF/RESPONDENT,
JULIE GORDON KITZIGER
Matthew A. Sherman
David R. Sherman
Patrick R. Follette
Nicholas R. Varisco

COUNSEL FOR DEFENDANT/RELATOR,
MICHAEL F. MIRE
Andrew P. Burnside
Andrew J. Halverson

CHAISSON, J.

In this case concerning disputed compensation, defendant Michael F. Mire

seeks supervisory review of the trial court’s denial of his exceptions of prescription

and no cause of action.

FACTS & PROCEDURAL HISTORY

On September 26, 2016, Julie Kitziger filed a petition for damages naming

Mr. Mire the sole defendant. The facts as set forth in the original and amended

petition are as follows:

In 2003, Ms. Kitziger, who has a degree in business, was working as a

salesperson for an oil and gas firm. She was recruited by Mr. Mire to work as a

salesperson at his company, Gulfstream Services, Inc. At that time, and on

numerous occasions thereafter, Mr. Mire made promises and representations to Ms.

Kitziger that she would be “taken care of” and that he would “take her to

retirement” if she came to work for him at Gulfstream. Based on such promises,

Ms. Kitziger left her previous employer and began working as a salesperson at

Gulfstream. From 2003 to 2015, Ms. Kitziger brought several accounts to the

company. In 2013, Gulfstream hired a new sales manager who purportedly began

harassing and bullying Ms. Kitziger; she had sales accounts taken away and her

bonuses were diminished. The purported harassment lasted approximately 10

months, during which time Mr. Mire encouraged Ms. Kitziger to “hang in there.”

In October of 2014, Gulfstream was purchased by the Jordan Company. Following

the sale, Mr. Mire continued working for Jordan in an executive role. Ms. Kitziger

continued her employment as a salesperson with the Jordan Company until she was

terminated on September 28, 2015, supposedly at Mr. Mire’s direction. The

petition sets forth three causes of action: 1) negligent misrepresentation; 2)

detrimental reliance; and 3) unjust enrichment.

In response to this original petition, Mr. Mire filed a peremptory exception

of no cause of action arguing that Ms. Kitziger’s claims amounted to a wrongful

termination suit and therefore it was necessary to analyze them under La. C.C. art.

2747, Louisiana’s at-will employment statute.1 At the hearing of Mr. Mire’s

exception, the trial court indicated that an exception of vagueness might have been

appropriate because Ms. Kitziger’s cause of action was not clearly pled.

In an attempt to clarify the causes of action brought by Ms. Kitziger, her

counsel argued that “the termination did not have anything to do with these

negligent misrepresentations, the detrimental reliance or the unjust enrichment,”

the termination “is very clearly not related to this case,” “it’s our position that this

case is completely separate and apart from the termination,” and that her cause of

action is “absolutely not” for continued employment. In a February 16, 2017

judgment, the trial court sustained Mr. Mire’s peremptory exception, but allowed

Ms. Kitziger 45 days to amend her petition to remove the grounds for the

exception.

Ms. Kitziger amended her petition in an attempt to cure the grounds for the

exception of no cause of action. In her amended petition, she states that the

promises were made by Mr. Mire in his individual capacity, not in his capacity as

an officer or owner of Gulfstream, and they were not made to her for indefinite or

lifelong employment. Ms. Kitziger also alleged in her amended petition that Mr.

Mire promised her she would be substantially compensated by Mr. Mire,

individually, if she assisted him in growing and eventually selling Gulfstream. Ms.

Kitziger, upon belief that she would be substantially compensated by Mr. Mire

upon a sale of Gulfstream, brought at least one potential buyer to Mr. Mire.2

1
Louisiana courts have found it unreasonable as a matter of law to rely on at-will employment. May v. Harris
Mgmt. Corp., 04-2657 (La. App. 1 Cir. 12/22/05), 928 So.2d 140, 146-47; Robinson v. Healthworks International,
L.L.C., 36,802 (La. App. 2 Cir. 1/29/03), 837 So.2d 714, 722, writ not considered, 03-0965 (La. 5/16/03), 843 So.2d
1120.
2
For example, Ms. Kitziger added the following language to paragraph 4 of her amended petition, “These continued
promises and representations: (1) were made by the Defendant, as an individual and/or individually, to the

2

In response to the first amending petition, Mr. Mire filed a second

peremptory exception of no cause of action, which the trial court denied. In its

reasons for judgment, the trial court found that Ms. Kitziger had alleged facts

sufficient to state a cause of action for detrimental reliance.

Mr. Mire filed additional peremptory exceptions of prescription and no

cause of action. The trial court also denied these exceptions. It is from this

judgment that Mr. Mire seeks supervisory review.

DISCUSSION

Standard of Review

We address first Mr. Mire’s peremptory exception of no cause of action.

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. State, Div. of Admin., Office of

Facility Planning & Control v. Infinity Sur. Agency, L.L.C., 10-2264 (La. 5/10/11),

63 So.3d 940, 945. 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 S., Inc., 616 So.2d 1234, 1238 (La. 1993). No evidence may be

introduced to support or controvert an exception of no cause of action. La. C.C.P.

art. 931. The court reviews the petition and accepts the well-pleaded allegations of

fact as true. Khoobehi Properties, LLC v. Baronne Dev. No. 2, L.L.C., 16-506 (La.

App. 5 Cir. 3/29/17), writ denied, 17-0893 (La. 9/29/17), 227 So.3d 288. Because

Louisiana utilizes a system of fact pleading, it is not necessary for a plaintiff to

plead a theory of the case in the petition; however, mere conclusions of the

plaintiff unsupported by the facts do not set forth a cause of action. Id. In

Petitioner; (2) were not made by the Defendant in his capacity as an owner and/or executive and/or officer and/or
shareholder of Gulfstream; and (3) were not made to the Petitioner for indefinite or lifelong employment.”

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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 necessarily based solely

on the sufficiency of the petition. Id. The issue is whether, on the face of the

petition, the plaintiff is legally entitled to the relief sought. State, Div. of Admin.,

Office of Facility Planning and Control, 63 So.3d at 946.

Negligent Misrepresentation

Ms. Kitziger has not filed any claims against her employer, the Jordan

Company, and asserts that her claims are against Mr. Mire in his individual

capacity, not his capacity as an executive at Gulfstream or Jordan. She alleges that

Mr. Mire’s promises that he would “take care of her” and “take her to retirement”

were negligent misrepresentations made by Mr. Mire in an individual capacity that

caused her damages. Negligent misrepresentation is a cause of action arising in

delict and is based on the principle that every person is responsible for the damage

he occasions not merely by his act, but by his negligence, his imprudence, or his

want of skill. La. C.C. arts. 2315-16; Daye v. Gen. Motors Corp., 97-1653 (La.

9/9/98), 720 So.2d 654, 659.

Generally, workplace related injuries, including those arising under La. C.C.

arts. 2315 and 2316, are governed by the provisions of the Louisiana Worker’s

Compensation Act. La. R.S. 23:1032 states, in pertinent part:

A. (1)(a) Except for intentional acts provided for in Subsection B, the
rights and remedies herein granted to an employee or his dependent
on account of an injury, or compensable sickness or disease for which
he is entitled to compensation under this Chapter, shall be exclusive of
all other rights, remedies, and claims for damages, including but not
limited to punitive or exemplary damages, unless such rights,
remedies, and damages are created by a statute, whether now existing
or created in the future, expressly establishing same as available to
such employee, his personal representatives, dependents, or relations,
as against his employer, or any principal or any officer, director,
stockholder, partner, or employee of such employer or principal, for
said injury, or compensable sickness or disease.

4

(b) This exclusive remedy is exclusive of all claims, including any
claims that might arise against his employer, or any principal or any
officer, director, stockholder, partner, or employee of such employer
or principal under any dual capacity theory or doctrine.

The dual-capacity doctrine is the principle that makes an employer - who is

normally shielded from tort liability by workers’ compensation laws - liable in tort

to an employee if the employer and employee stand in a secondary relationship that

confers independent obligations on the employer. Claudio v. Silla Cooling Sys.,

10-52 (La. App. 5 Cir. 12/14/10), 55 So.3d 902, 906.

Subsequent to the trial court sustaining Mr. Mire’s original exception of no

cause of action because it appeared that Ms. Kitziger’s action amounted to a

wrongful termination claim inextricably linked to her employee-employer

relationship with Mr. Mire, Ms. Kitziger amended her petition to allege that the

statements made to her by Mr. Mire were made in his individual capacity. Upon

careful review of her amended petition, we find that these allegations are merely

conclusory. Ms. Kitziger does not allege that there was a contractual relationship

between herself and Mr. Mire, nor does she allege any secondary relationship,

independent of the employment relationship, that would impose any independent

duty owed by Mr. Mire to her. As such, we conclude that Ms. Kitziger has failed

to state a cause of action against Mr. Mire for negligent misrepresentation outside

of the exclusive jurisdiction of the Office of Workers’ Compensation.

Detrimental Reliance

Ms. Kitziger’s claim of detrimental reliance, which is based on the law of

obligations rather than delict, is not subject to the exclusive jurisdiction of the

Office of Workers’ Compensation established by La. R.S. 23:1032.

Detrimental reliance is designed to prevent injustice by barring a party,

under special circumstances, from taking a position contrary to his prior acts,

5

admissions, representations, or silence. Louisiana Office of Risk Mgmt. v. Richard,

13-0890 (La. 10/15/13), 125 So.3d 398, 402. La. C.C. art. 1967 provides:

Cause is the reason why a party obligates himself.

A party may be obligated by a promise when he knew or should
have known that the promise would induce the other party to rely on it
to his detriment and the other party was reasonable in so relying.
Recovery may be limited to the expenses incurred or the damages
suffered as a result of the promisee’s reliance on the promise.
Reliance on a gratuitous promise made without required formalities is
not reasonable.

“To establish detrimental reliance, a party must prove three elements by a

preponderance of the evidence: (1) a representation by conduct or word; (2)

justifiable reliance; and (3) a change in position to one’s detriment because of the

reliance.” Luther v. IOM Co. LLC, 13-0353 (La. 10/15/13), 130 So.3d 817, 825.

“Estoppels are not favored in our law; therefore, a party cannot avail himself of

that doctrine if he fails to prove all essential elements of the plea.” Id. Claims of

detrimental reliance must be examined strictly and carefully. First Louisiana Bank

v. Morris & Dickson, Co., LLC, 45,668 (La. App. 2 Cir. 11/3/10), 55 So.3d 815,

825.

Under the facts alleged, Ms. Kitziger worked for Gulfstream as a salesperson

and was compensated by Gulfstream for that work. In order for Ms. Kitziger to

maintain her detrimental reliance claim, the finder of fact would have to identify

those alleged promises Mr. Mire made in his individual, personal capacity that can

be distinguished from the employment agreement with Gulfstream. In her

petitions, Ms. Kitziger states, “[t]he Defendant individually and personally, on

numerous occasions, represented to the Petitioner that he would ‘take care of her’

down the road, ‘would take her to retirement,’ and that the Petitioner was the key

to his company’s success.” Ms. Kitziger clarified at the hearing of Mr. Mire’s

exception that “these continued promises and representations were that the

Petitioner would be substantially compensated by the Defendant, individually, if

6

the Petitioner assisted the Defendant in growing and eventually selling

Gulfstream.” This statement and those similarly worded in the petition are vague

and conclusory. Despite the purported numerosity of these repeated promises and

representations, Ms. Kitziger fails to allege particular facts surrounding the

circumstances of any of these purported representations such as the date, time,

and/or location that Mr. Mire made the representations. Without such facts, Ms.

Kitziger’s allegations that these promises were somehow made by Mr. Mire in his

individual capacity, as opposed to in his capacity as her employer, are nothing

more than conclusory allegations. As previously stated, mere conclusions of the

plaintiff unsupported by the facts do not set forth a cause of action. Therefore, we

find Ms. Kitziger has failed to allege facts sufficient to state a cause of action for

detrimental reliance against Mr. Mire in his personal, individual capacity.

Unjust Enrichment

Unjust enrichment requires a person who has been enriched without cause at

the expense of another person to provide compensation to that person. La. C.C.

art. 2298. The remedy of unjust enrichment is subsidiary in nature, and shall not

be available if the law provides another remedy. Semco, LLC v. Grand Ltd., 16-

342 (La. App. 5 Cir. 5/31/17), 221 So.3d 1004, writ denied, 17-1291 (La. 11/6/17),

229 So.3d 475. The requisite elements of a claim for unjust enrichment are: (1) an

enrichment, (2) an impoverishment, (3) a connection between the enrichment and

the impoverishment, (4) an absence of justification or cause for the enrichment and

impoverishment, and (5) no other available remedy at law. Leftwich v. New

Orleans Weddings Magazine, 14-547 (La. App. 5 Cir. 11/25/14), 165 So.3d 916.

Ms. Kitziger does not allege, and we do not find, that she had no other

remedy available at law to her as a result of the alleged wrongful conduct of Mr.

Mire. Accordingly, she has no cause of action for unjust enrichment.

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CONCLUSION

Having determined that Ms. Kitziger is not entitled to the relief sought based

on the facts alleged in her petition, we reverse the judgment of the trial court and

sustain Mr. Mire’s exception of no cause of action. As such, Mr. Mire’s exception

of prescription is rendered moot. Ms. Kitziger’s claims against Mr. Mire are

dismissed with prejudice.

WRIT GRANTED

8

SUSAN M. CHEHARDY MARY E. LEGNON

CHIEF JUDGE INTERIM CLERK OF COURT

FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
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
SEPTEMBER 24, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-C-87
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DANYELLE M. TAYLOR (DISTRICT JUDGE)
MATTHEW A. SHERMAN (RESPONDENT) PATRICK R. FOLLETTE (RESPONDENT) ANDREW J. HALVERSON (RELATOR)

MAILED
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