Osceola P. Scanlan and Samuel P. Scanlan Versus Mbf of Metairie, LLC D/B/A Matt Bowers Ford, Christopher Haggstrom, Jeffrey Burns, Christopher Jac, and Ab Insurance Company

OSCEOLA P. SCANLAN AND SAMUEL P. NO. 21-CA-323
SCANLAN
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
MBF OF METAIRIE, LLC D/B/A MATT
BOWERS FORD, CHRISTOPHER STATE OF LOUISIANA
HAGGSTROM, JEFFREY BURNS,
CHRISTOPHER JAC, AND AB INSURANCE
COMPANY

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 809-296, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

March 23, 2022

MARC E. JOHNSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Hans J. Liljeberg

AFFIRMED IN PART;
REVERSED IN PART;
REMANDED WITH INSTRUCTIONS
MEJ
SMC
HJL

COUNSEL FOR PLAINTIFF/APPELLANT,
OSCEOLA P. SCANLAN AND SAMUEL P. SCANLAN
Raymond C. Burkart, Jr.

JOHNSON, J.

Plaintiffs/Appellants, Osceola P. Scanlan and Samuel P. Scanlan, appeal the

trial court’s judgment that sustained the peremptory exception of

Defendants/Appellees, MBF of Metairie, LLC d/b/a Matt Bowers Ford (hereinafter

referred to as “MBF”), Christopher Haggstrom, Jeffery Burns, and Christopher

Jackson, and dismissed the action of Samuel, without prejudice, for loss of wages

in the 24th Judicial District Court, Division “K”. For the following reasons, we

affirm in part, reverse in part, and remand to the trial court with instructions.

FACTS AND PROCEDURAL HISTORY

On August 17, 2020, Appellants filed a “Petition for Damages” against

Defendants. In their joint petition, Appellants alleged that on or about September

3, 2019, Samuel was changing the spark plugs on a 2006 Ford Mustang owned by

his father, Osceola. While changing the spark plugs, a piece of a spark plug broke

off and fell into cylinder head number five, which subsequently required the

service repair of the Mustang by Appellees. Appellants alleged that they incurred

damages through the negligence and breach of duties of Appellees during the

service repair of the Mustang. Specifically, Samuel alleged a loss of wages.

Appellees filed their “Exception of No Cause of Action with Incorporated

Memorandum in Support, Answer to Petition for Damages, and Reconventional

Demand” on October 26, 2020. In their exception, Appellees asserted that Samuel

had no ownership and/or insurable interest in the Mustang; thus, they could not be

liable to Samuel for any damages under any legal theory. Appellees then alleged

in their reconventional demand that the damages claimed by Appellants were

caused solely by the fault and/or negligence of Samuel and requested judgment

against Samuel for any amount that may be rendered against them.

A hearing on the exception of no cause of action was held on January 8,

2021. At the conclusion of the hearing, the trial court sustained Appellees’

21-CA-323 1

exception and dismissed Samuel’s claims against them without prejudice. The trial

court rendered a written judgment stating the same on February 19, 2021.

Appellants filed a motion for new trial on January 25, 2021, which was denied by

the trial court on March 22, 2021. The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Appellants alleged that the trial court committed reversible error

by: 1) dismissing Samuel’s claims against Appellees, and 2) denying their motion

for a new trial.

LAW AND ANALYSIS

Dismissal of Samuel’s claims and Denial of Motion for New Trial1

Appellants have raised the denial of their motion for new trial as an

assignment of error. Denial of a motion for new trial is an interlocutory and non-

appealable judgment. First Bank and Trust v. Proctor’s Cove II, LLC, 13-802 (La.

App. 5 Cir. 9/24/14); 150 So.3d 418, 423, writ denied, 14-2236 (La. 1/9/15); 157

So.3d 1110. However, the Louisiana Supreme Court has instructed the courts of

appeal to consider an appeal of the denial of a motion for new trial as an appeal of

the judgment on the merits, when it is clear from the appellant’s brief that the

intent is to appeal the merits of the case. Id. It is clear from Appellants’ brief that

they intended to appeal the merits of the February 19, 2021 judgment, which

sustained Appellees’ exception of no cause of action and dismissed Samuel’s

claims against them.

Appellants allege that the trial court erred in sustaining Appellee’s

peremptory exception of no cause of action and dismissing Samuel’s claims. They

argue that Samuel states a cause of action in the joint petition. They contend that

Samuel had usufruct of the Mustang because Osceola gave Samuel use and

possession of the Mustang for a limited period of time to derive income from

1
Appellees did not file a brief in this appeal.

21-CA-323 2

Samuel’s gainful employment; and, as a usufructuary, Samuel had the right to

possess the Mustang and derive the utility, profits, and advantages that possession

of the Mustang produced. Thus, Appellants maintain that Samuel had an insurable

interest in the Mustang through his usufruct.

Appellants also argue that they had a gratuitous contract, whereby Osceola

loaned a non-consumable thing (the Mustang) to Sam for his use and return. They

contend that their gratuitous contract is akin to the rights of a lessee who sustains

damages. Appellants further argue that Appellees’ reconventional demand is an

additional acknowledgment of the existence of Samuel’s cause of action. Lastly,

Appellants argue that Samuel’s petition raises causes of action, subject to the duty-

risk analysis. In the event that this Court does not overrule the trial court’s

judgment, Appellants request that they be allowed to amend Samuel’s petition for

damages.

Pursuant to La. C.C.P. art. 934, “[w]hen 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.” When

reviewing a judgment sustaining a peremptory exception of no cause of action, this

Court, in Grubbs v. Haven Custom Furnishings, LLC, 18-710 (La. App. 5 Cir.

5/29/19); 274 So.3d 844, 847-48, has stated the following:

A cause of action, for purposes of the peremptory exception, is
defined as the operative facts that give rise to the plaintiff’s right to
judicially assert an action against the defendant. The function of the
peremptory exception of no cause of action is to question whether the
law extends a remedy to anyone under the factual allegations of the
petition. The exception’s function is to test the legal sufficiency of
the petition by determining whether the law affords a remedy on the
facts alleged in the pleading. No evidence may be introduced to
support or controvert the exception raising the objection of no cause

21-CA-323 3

of action. For the purpose of determining the issues raised by the
exception, all facts pleaded in the petition must be accepted as true.

The appellate court standard of review of a judgment sustaining
an exception of no cause of action is 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. A petition should not be dismissed for
failure to state a cause of action, unless it appears beyond a doubt the
plaintiff can prove no set of facts in support of any claim that would
entitle him to relief.

(Internal citations omitted). Whether the plaintiff can prove the allegations set

forth in the petition is not determinative of the exception of no cause of action, and

the court may not go beyond the petition to the merits of the case. Succession of

Griffin, 17-637 (La. App. 5 Cir. 5/30/18); 249 So.3d 1048, 1055, writ denied, 18-

1081 (La. 10/15/18); 253 So.3d 1303.

In the instant matter, Appellants set forth 21 allegations in their joint

petition. Among the pertinent allegations in this matter, Appellants alleged that

Osceola’s Mustang was required for Samuel’s continued employment as a delivery

employee for a food service establishment. They stated that, while Samuel was

changing a spark plug in Osceola’s Mustang on September 3, 2019, a part of the

spark plug broke and fell into cylinder head number five. In an effort to prevent

damage to the Mustang’s engine, Appellants stated that they contacted a tow truck

company and instructed the tow driver not to start the engine while towing the

vehicle to MBF service facility. The petition alleges that Samuel placed a note on

the dashboard of the Mustang informing anyone at MBF not to start the engine

because a spark plug part was in the engine cylinder. It also alleges that Samuel

orally informed Christopher Jackson not to start the engine because of the spark

plug part. Appellants believed that an employee of MFB started the Mustang’s

engine to drive it into a service area for repairs. They further stated that Samuel

was eventually terminated from his job because he could not make deliveries to his

employer’s customers. Samuel prayed for loss of wages, as a result of Appellees’

21-CA-323 4

alleged negligence and breach of duties.

In their exception of no cause of action, Appellees maintained that, since

Samuel had no ownership and/or insurable interest in the Mustang, there was no

duty owed to Samuel at any time for his alleged indirect economic loss related to

Osceola’s vehicle. They averred that the duty allegedly violated does not

encompass the particular risk of injury allegedly sustained by Samuel. Ultimately,

Appellees asserted they could not be liable to Samuel for any damages under any

legal theory.

At the hearing on the exception, the trial court orally sustained Appellee’s

exception of no cause of action. The court found that, in terms of the moral, social,

and economic values with a view towards the ideal of justice, Samuel’s claims did

not satisfy the Louisiana Supreme Court’s requirements. In regards to amending

the petition, the trial judge stated, “I’m not – I mean I’m not suggesting that you

amend because I don’t know that there are any facts that would change things. If

you’re aware of them[,] then certainly you can amend your petition and there may

be another exception.” The trial judge subsequently noted that her dismissal was

without prejudice.

After review, we find that the trial court was not legally erroneous in

sustaining Appellees’ exception of no cause of action. Appellants’ petition does

not set forth sufficient allegations of fact that would afford Samuel a remedy under

the law for loss of wages. However, we also find that the trial court was erroneous

in failing to allow Appellants the opportunity to amend their petition. As earlier

cited, La. C.C.P. art. 934 provides that a judgment sustaining the exception of no

cause of action shall dismiss the action, if the grounds of the objection cannot be

removed, or order amendment of the petition. We conclude that Appellants should

have been allowed the opportunity to amend their petition to state a valid cause of

21-CA-323 5

action on behalf of Samuel.2

DECREE

For the foregoing reasons, we affirm the portion of the trial court’s judgment

sustaining the peremptory exception of no cause of action filed by MBF of

Metairie, LLC d/b/a Matt Bowers Ford (hereinafter referred to as “MBF”),

Christopher Haggstrom, Jeffery Burns, and Christopher Jackson, and reverse the

dismissal of Samuel P. Scanlan’s claims. Accordingly, we remand the matter to

the trial court with instructions that it afford Appellants an opportunity to amend

the joint petition for damages to remove the grounds for the objection for the

exception of no cause of action, if they are able to do so, within a reasonable time

delay pursuant to La. C.C.P. art. 934.

AFFIRMED IN PART;
REVERSED IN PART;
REMANDED WITH INSTRUCTIONS

2
According to La. C.C. art. 535, a usufruct is a real right of limited duration on the property of
another. A usufructuary may institute against a third person all actions that are necessary to insure the
possession, enjoyment, and perseveration of his right. La. C.C. art. 566. When any loss, extinction, or
destruction of property subject to usufruct is attributable to the fault of a third person, the usufruct does
not terminate, but it attaches to any claim for damages and the proceeds therefrom. La. C.C. art. 614.

21-CA-323 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
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
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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
MARCH 23, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-323
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
DAVID K. PERSONS (APPELLEE)

MAILED
RAYMOND C. BURKART, JR. (APPELLANT)
ATTORNEY AT LAW
321 NORTH FLORIDA STREET
SUITE 104
COVINGTON, LA 70433