Jadallah Saed Versus Robert G. Harvey, Sr., Omar Hamden, Fatmah Hamdan

JADALLAH SAED NO. 21-CA-399

VERSUS FIFTH CIRCUIT

ROBERT G. HARVEY, SR., COURT OF APPEAL
OMAR HAMDEN, FATMAH HAMDAN
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 810-710, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

March 09, 2022

ROBERT A. CHAISSON
JUDGE

Panel composed of Judges Robert A. Chaisson,
Stephen J. Windhorst, and Hans J. Liljeberg

JUDGMENT VACATED; REMANDED
RAC
SJW
HJL

COUNSEL FOR PLAINTIFF/APPELLANT,
JADALLAH SAED
Jimmy A. Castex, Jr.
John B. Esnard, III
Gothard K. Reck
Jack E. Morris

COUNSEL FOR DEFENDANT/APPELLEE,
OMAR HAMDAN
Jacob K. Weixler

CHAISSON, J.

Plaintiff, Jadallah Saed, appeals the dismissal of his breach of contract action

against defendant, Omar Hamdan,1 on an exception of no right of action. For the

reasons that follow, we vacate the February 8, 2021 judgment of the trial court and

remand the matter for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

On September 30, 2020, Mr. Saed filed a petition for damages against

Robert G. Harvey, Sr., Omar Hamdan, and Fatmah Hamdan, alleging breach of

contract. The petition specifically alleged that on November 15, 2013, Mr. Saed

entered into several written agreements, including an Assets Purchase Agreement

and an Assignment of Membership Interest, through which Mr. Saed acquired

defendants’ interest in a gas station, convenience store, and strip center on Chef

Menteur Highway and all interest that defendants had in Wagner Chef, LLC. In

the petition, Mr. Saed asserted that defendants breached the sale documents

because they allegedly failed to transfer the businesses free and clear of liabilities,

liens, and encumbrances.

On November 13, 2020, Omar Hamdan filed a peremptory exception of no

right of action seeking dismissal of Mr. Saed’s petition pursuant to La. C.C.P. art.

425.2 In particular, Omar Hamdan alleged:

Mr. Saed previously asserted this same claim against Mr. Harvey in a
2014 litigation in Orleans Parish which was later tried to a final
judgment. Mr. Saed’s action is barred by Article 425 because the
article required Mr. Saed to assert any and all then-existing claims in
the Orleans Parish lawsuit arising out of the parties’ purported failure
to deliver Wagner Chef free and clear. Because he failed to do so,
his claims are now barred and Mr. Hamdan’s exception should be
sustained.

1
Throughout the proceedings, Omar Hamdan’s last name is spelled both as “Hamdan” and “Hamden.”
However, in the pleadings filed by Omar Hamdan in the trial court and in his appellate filings, Mr.
Hamdan consistently spells his last name as “Hamdan.” Therefore, in this opinion, his name will be
spelled as “Hamdan.”
2
La. C.C.P. art. 425(A) provides: “A party shall assert all causes of action arising out of the transaction or
occurrence that is the subject matter of the litigation.”

21-CA-399 1

Mr. Hamdan attached several exhibits to his peremptory exception and

memorandum in support thereof, including: the “First Amending and Supplemental

Petition for Declaratory Judgment” filed in the Orleans Parish lawsuit (Exhibit A);

letter to Mr. Harvey setting forth the terms of the agreement to purchase and sell

(Exhibit B); the “Assignment of Membership Interest in Wagner Chef, LLC”

(Exhibit C); the “Notice of Signing of Judgment” and the “Judgment” of the

Orleans Parish Civil District Court rendered in favor of Brothers Petroleum on

September 4, 2019, and signed on September 23, 2019 (Exhibit D).

Mr. Saed filed an opposition to Mr. Hamdan’s exception on the grounds that

La. C.C.P. art. 425 does not apply to this case because Mr. Saed was not a party to

the Orleans Parish lawsuit, and the claims raised in the instant action are unrelated

to the issues asserted in the previous lawsuit involving Brothers Petroleum.

Further, Mr. Saed maintained that Mr. Hamdan did not meet his burden of proof on

the exception. With his opposition, Mr. Saed submitted, under seal to the court, a

“Settlement and Release Agreement” that was executed on the same day as the

Assets Purchase Agreement (Exhibit 1).

In his reply memorandum, Mr. Hamdan asserted that La. C.C.P. art. 425

does apply to this case and attached two pleadings from the Orleans Parish lawsuit

to his reply memorandum, including a “Second Amending and Supplemental

Petition for Declaratory Judgment and for Damages for Breach of Contract”

(Exhibit A) and an “Ex Parte Unopposed Motion to Sever Claims for Trial and

Incorporated Memorandum” (Exhibit B).

The trial court conducted a hearing on the exceptions on February 8, 2021.

At the hearing, the parties offered the same arguments that were made in their

memoranda and made references to the documents attached to their pleadings.

After taking the matter under advisement, the trial court, on February 8, 2021,

sustained Mr. Hamdan’s exception of no right of action pursuant to La. C.C.P.

21-CA-399 2

art. 425, and dismissed, with prejudice, Mr. Saed’s claims against Mr. Hamdan.3

Mr. Saed thereafter filed a motion for new trial from the February 8, 2021

judgment sustaining the exception of no right of action, which the trial court

denied.

Mr. Saed now appeals. He contends that the trial court erred in sustaining

the exception of no right of action and in dismissing his claims with prejudice

without allowing him an opportunity to amend the petition. With regard to the trial

court’s sustaining of the exception of no right of action, Mr. Saed specifically

asserts the following arguments:

a. Saed’s petition discloses rights of action against Hamdan for
breaches of the Assets Purchase Agreement, breaches of the
Assignment of Membership Interest in Wagner Chef, LLC, and
contractual indemnity;

b. Saed’s rights of action against Hamdan are not precluded by the
judgment rendered in the prior litigation against Brothers
Petroleum because the fuel service agreement between Brothers
Petroleum and Wagner Chef was a different transaction or
occurrence than the Assets Purchase Agreement and Assignment
of Membership Interest between Saed and Hamdan; and

c. Saed’s rights of action against Hamdan are not precluded by the
judgment rendered in the prior litigation against Brothers
Petroleum because Hamdan was not a party to that litigation.

LAW AND ANALYSIS

In the present case, we are unable to reach the merits of the appeal because

the evidence relied upon by the parties at the hearing on the exception of no right

of action was not introduced at the February 8, 2021 hearing. La. C.C.P. art. 931

provides: “On the trial of the peremptory exception pleaded at or prior to the trial

of the case, evidence may be introduced to support or controvert any of the

objections pleaded, when the grounds thereof do not appear from the petition.” At

the hearing on the exception in the present case, the parties attached numerous

3
Mr. Hamdan had filed an alternative exception of no cause of action. After sustaining Mr. Hamdan’s
exception of no right of action, the trial judge found the exception of no cause of action to be moot.

21-CA-399 3

documents to their memoranda and referenced those documents during their

arguments at the hearing. However, the transcript from the February 8, 2021

hearing reflects that these documents were never offered or introduced into

evidence. In addition, both parties acknowledge that the documents presumably

relied upon by the trial judge for its ruling were not introduced at the 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 Trust Co. ex rel. Morgan Stanley ABS Capital I,

Inc. v. Carter, 10-663 (La. App. 5 Cir. 1/25/11), 59 So.3d 1282, 1285, writ denied,

11-392 (La. 4/8/11), 61 So.3d 691.

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. King

v. Blue Haven Pools of Louisiana Inc., 21-189 (La. App. 5 Cir. 12/22/21), __ So.3d

__.

In the present case, since the record does not contain any of the documents

relating to the Orleans Parish lawsuit, which were relied on by the parties at the

hearing of the exception, we are unable to address the merits of this case. On

appeal, Mr. Hamdan suggests that this matter can still be decided on appeal based

on the allegations set forth in the petition, regardless of whether the trial court

considered or the parties introduced the evidence at the hearing on the exceptions.

However, having reviewed the petition, we find that the grounds for the exception

21-CA-399 4

of no right of action do not appear from the petition. Thus, because the grounds

for the exception of no right of action do not appear from the petition, and there is

no evidence in the record on which this Court can decide the exception, we cannot

review the correctness of the trial court’s judgment sustaining the exception.

Therefore, we must vacate the February 8, 2021 judgment of the trial court

sustaining Mr. Hamdan’s exception of no right of action.

We note that Mr. Hamdan has filed a “Motion to Remand and Suspend

Briefing Delays” in this Court. In his motion, Mr. Hamdan acknowledges that the

documents were not formally introduced in the trial court at the hearing on the

exception of no right of action and requests that this Court remand the matter for

correction of the error prior to the submission of the appeal. However, in similar

circumstances, where the grounds for the exception did not appear in the petition

and no evidence was introduced to support the exception at the hearing, this Court

has vacated the judgment of the trial court and remanded for further proceedings.

See Bovie v. St. John the Baptist Par., Dep't of Streets and Roads, 13-162 (La.

App. 5 Cir. 9/4/13), 125 So.3d 1158. We therefore deny Mr. Hamdan’s motion to

remand for correction of the error prior to the submission of the appeal.

CONCLUSION

For the foregoing reasons, we vacate the judgment of the trial court

sustaining Mr. Hamdan’s exception of no right of action and remand the matter for

further proceedings consistent with this opinion. We further deny Mr. Hamdan’s

“Motion to Remand and Suspend Briefing Delays.”

JUDGMENT VACATED;
REMANDED

21-CA-399 5

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
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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MARCH 9, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-399
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
JACK E. MORRIS (APPELLANT) JACOB K. WEIXLER (APPELLEE)

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