KPAX, LLC d/b/a Mid City Beer Garden v. Viking Concrete Floors, LLC and Jeremy Rowe

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 0114

KPAX, LLC D/B/ A MID CITY BEER GARDEN

VERSUS

VIKING CONCRETE FLOORS, LLC AND JEREMY ROWE

DATE DE JUDGMENT.-
SEP 15 2023

ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA
NUMBER 721324, SECTION 31

HONORABLE TIFFANY FOXWORTH-ROBERTS, JUDGE

Edward J. Laperouse, 11 Counsel for Plaintiff A
- ppellee
Christopher M. Patin KPAX, LLC d/ b/ a Mid City Beer
Bethany Breaux Percle Garden

Danny C. Picuo, Jr.
Baton Rouge, Louisiana

Sharon B. Kyle Counsel for Defendant -Appellant
Sebastian C. Ashton Jeremy Rowe
Danny Charles Picou, Jr.
Baton Rouge, Louisiana

BEFORE: GUIDRY, C,J., CHUTZ, AND LAMER, JJ.

Disposition. REVERSED AND REMANDED.

CHUTZ, I

Defendant, Jeremy Rowe, the sole member of Viking Concrete Floors, LLC

Viking) appeals a final default judgment holding him liable in solido with Viking

for damages allegedly resulting from poor workmanship by Viking in performing

work for plaintiff, KPAX, LLC d/b/ a Mid City Beer Garden ( Mid City). We reverse

and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On November 4 and December 6, 2021, Viking ( a foreign limited liability

company) entered into written contracts with Mid City to perform certain work on

the floors at Mid City' s commercial property in Baton Rouge, Louisiana. Viking

was contracted to remove the existing floor sealers and to reapply a product provided

by Viking " to enhance the floor finish, and in certain areas, improve the flooring

surface friction." The total price of the two contacts was $ 11, 019. 00, of which Mid

City paid a deposit of $3, 673. 00.

Viking performed the contracted work on January 4- 5, 2022. In March 2022,

Viking received a demand letter from Mid City' s attorneys claiming the work

performed by Viking was defective and demanding correction of the defects. Mid

City withheld payment of the remaining $ 7, 346.00 due under the contracts.

Thereafter, on July 19, 2022, Mid City filed suit naming Viking and Mr. Rowe as

defendants. Mid City alleged Viking' s work was deficient in numerous respects

including that it exposed unsightly aggregates in the concrete not previously evident,

it created a slippery floor surface resulting in an unsafe condition for patrons and

employees, and the product applied on the floors was peeling and flaking in multiple

locations throughout the property. Mid City contended it would incur expenses,

consequential damages, court costs, and attorney fees of not less than $ 133, 240. 75

as a result of Viking' s breach of contract and negligence.

2

After being served on August 29, 2022, Mr. Rowe failed to file an answer or

any other responsive pleading. On September 27, 2022, Mid City filed a motion for

default judgment against Mr. Rowe.' To establish its claim against Mr. Rowe, Mid

City filed the affidavit of Mid City' s owner -agent Brian Baiamonte. In his affidavit,

Mr. Baiamonte stated that Viking' s defective work has required Mid City to incur

expenses of $3, 601. 71 in purchasing slip and fall mitigation supplies ( e.g., anti -slip

mats and carpets) in order to prevent slip and fall injuries, He further deposed that

Mid City would be required to spend not less than $ 44,000. 00 to repair Viking' s

defective work and would lose not less than $ 78, 049. 50 in sales revenues and

2, 250.00 in food spoilage during the approximately ten-day period Mid City would

have to be shut down while repairs were performed. Lastly, Mr. Baiamonte asserted

Mid City has incurred $ 11, 123. 65 in attorney fees, part of which was to defend

against a slip and fall claim that resulted from the hazardous floor condition created

by Viking' s defective work.

On October 6, 2022, the district court granted Mid City' s motion and signed

a final default judgment in favor of Mid City and against Mr. Rowe. The judgment

held Mr. Rowe liable in solido with Viking in the amount of $133, 240. 75, plus

11, 123. 65 for attorney fees, court costs, and legal interest compounded annually

from the date of judgment.2 Mr. Rowe has now appealed. In four assignments of

error, he argues the district court erred in finding Mid City established a prima facie

3
Viking was served with Mid City' s petition on July 27, 2022, and also failed to file an answer.
Mid City filed a separate motion for default judgment against Viking. On September 1, 2022, the
district court rendered a final default judgment in favor of Mid City and against Viking in the
amount of $133, 240. 75, plus attorney fees in the amount of $7, 851, 54, all court costs, and judicial
interest compounded annually from the date ofjudgment. The judgment against Viking is not part
of this appeal; nor is Viking a party to the instant appeal.

a The district court granted the default judgment against Mr. Rowe without holding a hearing in
open court. Pursuant to La. C. C. P. arts. 1702( B)( 1) and ( C) and 1702, 1, in certain instances,
including a suit on a conventional obligation, a district court has discretion to grant a motion for
default judgment without holding a hearing in open court if certain requirements are met. Given
our disposition of this appeal on other grounds, we express no opinion regarding whether it was
appropriate for the district court to grant a default judgment without a hearing under the
circumstances of this case,

3

case proving the existence and validity of its claims, in holding him personally liable

in solido with Viking, in awarding attorney fees when none were authorized by

statute or contract, and in awarding judicial interest and imposing in solido liability

with Viking when Mid City did not pray for such relief in its petition.

DISCUSSION

On appeal, Mr. Rowe argues Mid City failed to present admissible and

competent evidence establishing a prima facie case proving the existence and

validity of its claims. He contends the affidavit of Mr. Baiamonte, which was the

only evidence Mid City presented to establish its claims, was an " unsupported, self-

serving affidavit" containing " inexact and speculative figures" for the damages

allegedly sustained. Mr. Rowe further contends that, being merely a member of

Viking, an LLC, there was no evidence presented, or even allegations made against

him, which would support a personal judgment against him in this case. We agree.

In order to obtain a default judgment, a plaintiff must establish the elements

ofa prima facie case with competent and admissible evidence, as fully as though the

defendant had denied each of the allegations in the petition. The plaintiff must

present competent evidence that convinces the court it is probable he would prevail

on a trial on the merits in proving both the existence and the validity of his claim.

La. C. C. P. art. 1702( A); Arias v. Stolthaven New Orleans, L,L.C., 08- 1111 ( La.

515109), 9 So. 3d 815, 820; Sessions & Fishman a Liquid Air Corporation, 616

So. 2d 1254, 1258 ( La. 1993). Although there is a presumption that a default

judgment is supported by sufficient evidence, this presumption may be rebutted by

the record upon which the judgment is rendered. Id. In reviewing a default

judgment, the appellate court is restricted to determining the sufficiency of the

evidence offered in support of the judgment. This determination is a factual one

governed by the manifest error standard of review. Arias, 9 So.3d at 818.

E

In this case, even assuming arguendo that Mr. Baiamonte' s affidavit,

including his assertion that defects appeared shortly after Viking completed the

flooring work, was sufficient to establish a breach of contract by Viking, the

evidence presented was clearly insufficient to establish a prima facie case for the

damages claimed. In a breach of contract suit, the plaintiff has the burden of proving

any damage it suffered as a result of the alleged breach. In cases where a party must

obtain the services of another to complete the contractual obligations of the

breaching party, damages are assessed based on the loss sustained and any profit of

which the non -breaching party is deprived. La. C. C. arts. 1995 and 2769; L & A

Contracting Co., Inc. a Ram Indus. Coatings, Inc., 99- 0354 ( La. App. 1st Cir.

6/ 23/ 00), 762 So. 2d 1223, 1235, writ denied, 00- 2232 ( La. 11/ 13/ 00), 775 So. 2d 438.

The plaintiff must prove actual damages, however, and cannot merely claim

damages based on speculation or conjecture. It must appear reasonably certain that

the amount of damages sought by the plaintiff rests upon a certain basis. See

Payphone Connection Plus, Inc. v Wagners Chef,LLC, 19- 0181 ( La, App. 4th Cir.

7131119), 276 So3d 589, 598.

In his affidavit, Mr. Baiamonte claimed Mid City had already incurred

3, 601. 71 in slip and fall mitigation expenses due to the hazardous condition created

by Viking' s poor workmanship. No receipts or invoices for these alleged

expenditures were provided to the court, however. Mr. Baiamonte also claimed it

would cost Mid City not less than $ 44, 000. 00 to repair the floors, and it would lose

at least $ 78, 049. 50 in sales revenues and $ 2, 250. 00 in food spoilage during a forced

ten-day closure. Despite these claims, Mr. Baiamonte' s affidavit lacked any detail,

specificity, or explanation as to how these sums were calculated or why it would be

necessary for Mid City to be closed for ten days for repairs when the initial contract

work was completed in two days.

5

Mr. Baiamonte' s affidavit merely makes conclusory allegations as to the

amounts of damages Mid City allegedly sustained. Mid City provided no other

evidence to establish the claimed damages. Our review of the record reveals Mid

City failed to present evidence establishing a reasonable basis for the damages

awarded by the district court.' There is nothing in the record to show these damages

were based on anything other than speculation and conjecture. See Payphone

Connection Plus, Inc., 276 So. 3d 598. Accordingly, because Mid City failed to

make a primafacie case establishing its damages, an essential element of its claim,

the district court erred in granting a final default judgment in favor of Mid City.

Additionally, as Mr. Rowe correctly contends, the district court also erred in

finding Mid City presented a prima facie case supporting a judgment against him

personally. LLCs and their members are considered wholly separate entities. La.

C.C. art. 24: Charming Charlie, Inc. v. Perkins Rowe Associates, L.L.C., 11- 2254

La. App. 1 st Cir. 7110112), 97 So. 3d 595, 598. Generally, members of a LLC may

not be assessed with personal liability for the debts, obligations, or liability of the

LLC. See La. R.S. 12: 1320( B), Wilson v. Two SD, LLC, 15- 0959 (La. App. 1st Cir.

12123115), 186 So. 3d 103, 114. Under La. R.S. 12: 1320( D), there are only certain

narrowly defined circumstances" under which a member of a LLC may be held

personally liable. Specifically, the limitation of liability normally extended to a LLC

member is inapplicable if the member: ( 1) engages in fraud; ( 2) commits a negligent

or wrongful act; or (3) breaches a professional duty. Wilson, 186 So. 3d at 114.

3
Similarly, Mid City failed to support its claim for attorney fees with any invoices or other
documentation. Regardless, the award of attorney fees was also erroneous because there was no
basis for an award of attorney fees to Mid City either by statute or under the contracts between the
parties. While the contracts did provide for Mid City to pay Viking attorney fees in the event

collection of the contract price was necessary, the contracts did not provide for Mid City to receive
attorney fees from Viking. In Louisiana, an award for attorney fees is not allowed except when
authorized by statute or contract. Sher a Lafayette Insurance Company, 07- 2441 ( La. 418/ 08),
988 So. 2d 186, 201.

G

The fraud exception is inapplicable herein because Mid City' s petition

contains no allegations of fraud against Mr. Rowe. Moreover, to impose personal

liability on a member under the tort or wrongful act exception, the member must

owe a duty to the plaintiff that does not arise under the contract between the plaintiff

and the LLC. Wilson, 186 So. 3d at 114- 15. To do otherwise would negate the

general rule of limited liability established by La. R.S. 12: 1320. See Nunez v.

Pinnacle Homes, L.L. C., 15- 0087 ( La. 10/ 14/ 15), 180 So. 3d 285, 295. In this case,

Mid City has not showed Mr. Rowe owed any duty to it that arose outside of its

contracts with Viking. A showing of poor workmanship in performing a contract, in

and of itself, is insufficient to establish a " negligent or wrongful act" within the

meaning of La. R.S. 12: 1320( D). Wilson, 186 So. 3d at 115.

The final exception provided by La. R.S. 12: 1320( D) is the breach of a

professional duty by a LLC member. This exception has been interpreted to apply

only to one engaged in a profession specifically identified in Title 12 ofthe Louisiana

Revised Statutes ( e.g., lawyers, physicians, dentists, accountants, etc .).4 Wilson, 186

So. 3d at 115. Contractors, including flooring contractors such as Mr. Rowe, are not

members of a profession identified in Title 12. Therefore, Mid City failed to

establish the breach of a professional duty exception was applicable herein. See

Nunez, 180 So. 3d at 292.

Nevertheless, Mid City argues the corporate veil should be pierced and Mr.

Rowe should be held personally liable because Viking failed to conduct its business

on a corporate footing. In particular, Mid City points out that Viking failed to follow

the statutory requirements of La R.S. 12: 1350. 1 and 12: 1354, which require LLCs

to file an annual report. In support of its claims, Mid City attached a printout from

the Louisiana Secretary of State' s office indicating Viking' s status was active, but it

4 See La. R.S. 12: 801 et seq.; La. R.S. 12: 901 et seq.; La. R.S. 12: 981 et seq.; and La. R.S. 12: 1011
et seq.

7

was not in good standing due to its failure to file an annual report, its last annual

report having being filed on December 21, 2021.

Under limited circumstances, personal liability can be imposed on an LLC

member under the jurisprudential doctrine of piercing the corporate veil. Fausse

Riviere, L.L.C. v. Snyder, 16- 0633 ( La. App. 1st Cir. 2/ 15/ 17), 211 So. 3d 1188,

1192. The determination of whether to allow piercing of the corporate veil is not

made, however, based on a single factor but by considering the totality of the

circumstances. Some circumstances that may point to a disregard of the corporate

identity are: ( 1) commingling of corporate and shareholder funds; ( 2) failure to

follow statutory formalities for incorporating and transacting corporate activities; ( 3)

under -capitalization; ( 4) failure to provide separate bank accounts and bookkeeping

records; and ( 5) failure to hold regular shareholder and director meetings. Fausse

Riviere, L.L. C, 211 So. 3d at 1193. In this case, Mid City' s argument that the

corporate veil should be pierced and Mr. Rowe held personally liable is based solely

on Viking' s failure to meet the statutory requirement of filing an annual report.

While the failure to follow statutory requirements is one of the factors to be

considered in determining whether to pierce the corporate veil, it is only one of the

numerous factors considered in making this determination. Mid City presented no

other evidence supporting its claim that Viking failed to conduct its business on a

corporate footing. Accordingly, Mid City failed to meet its burden of establishing

exceptional circumstances that warranted disregarding the concept of Viking as a

separate entity from its members. See Fausse Riviere, L.L.C., 211 So. 3d at 1192-

95. Standing alone, Viking' s failure to file an annual report was insufficient to

establish a prima facie case supporting the district court' s imposition of personal

liability on Mr. Rowe.

n.

CONCLUSION

For the reasons stated, the October 6, 2022 judgment of the district court is

reversed, and this matter is remanded for further proceedings consistent with this

opinion. All costs of this appeal are assessed to KPAX, LLC d/ b/ a Mid City Beer

Garden.

REVERSED AND REMANDED.

E