Lashonda Kuykendall Versus Kimbrough's Inc Pool & Spa Builders, David Kimbrough, Charles Boutin, & Abc Insurance Company

LASHONDA KUYKENDALL NO. 23-C-106

VERSUS FIFTH CIRCUIT

KIMBROUGH'S INC POOL & SPA BUILDERS, COURT OF APPEAL
DAVID KIMBROUGH, CHARLES BOUTIN,
& ABC INSURANCE COMPANY STATE OF LOUISIANA

May 10, 2023

Linda Wiseman
First Deputy Clerk

IN RE LASHONDA KUYKENDALL

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD A.
ROWAN, JR., DIVISION "L", NUMBER 834-772

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Cornelius E. Regan, Pro Tempore

WRIT GRANTED; JUDGMENT REVERSED; REMANDED WITH
INSTRUCTIONS

Plaintiff/Relator, Lashonda Kuykendall (“Ms. Kuykendall”), seeks review of

the trial court’s January 30, 2023 judgment denying her exception of no cause of

action, or, in the alternative exception of vagueness, in which she claimed the

reconventional demand filed by Defendant-in Reconvention/Respondent,

Kimbrough’s Inc. Pool & Spa Builders (“Kimbrough’s Inc.”), asserts legal

conclusions and fails to provide a factual basis for its conclusion that she is liable

for breach of contract. After a hearing, the trial court overruled the exception finding

Kimbrough’s Inc.’s reconventional demand alleged facts with sufficient specificity

to state a cause of action. On supervisory review, we find Kimbrough Inc.’s

reconventional demand fails provide a factual basis for its conclusions that Ms.

Kuykendall is liable for breach of contract; rather, the reconventional demand makes

conclusory statements regarding Ms. Kuykendall’s alleged breach of contract. For

23-C-106

the reasons expressed below in greater detail, we find the trial court erred in denying

Ms. Kuykendall’s exception of no cause of action.

In November 2022, Ms. Kuykendall filed a petition for damages against

Kimbrough’s Inc., and David Kimbrough, in his individual capacity, as well as

against Charles Boutin, and ABC Insurance Company. Ms. Kuykendall’s petition

alleged that in August 2022, she entered into a contract with Kimbrough’s Inc. for

the construction of a pool at her home, which contemplated a specified deadline for

completion; that Kimbrough’s Inc. failed to take specific preliminary steps toward

the pool’s construction, which prevented the project’s timely commencement and

completion; and that the pool was never constructed. Ms. Kuykendall’s petition

alleges that Kimbrough’s Inc.’s actions and omissions constitute a breach of

contract. Ms. Kuykendall’s petition also asserted claims for fraud, and unfair trade

practices.

Kimbrough’s Inc. answered the petition and filed a reconventional demand,

claiming that Ms. Kuykendall breached the contract she entered with Kimbrough’s

Inc., allegedly resulting in the company sustaining damages and lost business

opportunities. In response, Ms. Kuykendall filed an exception of no cause of action,

or in the alternative, an exception of vagueness.

During the January 24, 2023 hearing, the trial court considered Ms.

Kuykendall’s exception of no cause of action, or in the alternative, an exception of

vagueness, which the trial court denied. This timely writ followed.

An appellate court reviews a peremptory exception of no cause of action using

the de novo standard of review in that exceptions of no cause of action present

questions of law. Newcomer v. Bennett, 09-27 (La. App. 5 Cir. 10/13/09), 27 So.3d

858, 860. “[A]n exception of no cause of action tests ‘the legal sufficiency of the

petition by determining whether the law affords a remedy on the facts alleged in the

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pleading.” Henderson v. State Farm Mut. Auto. Ins. Co., 21-0654 (La. App. 4 Cir.

12/17/21), 335 So.3d 349, 353 (internal quotations omitted).

In deciding whether a petition states a cause of action, a court may consider

only the petition, any amendments to the petition, and any documents attached to the

petition. Newcomer, 27 So.3d at 860; Henderson 335 So.3d at 353 (quoting Green

v. Garcia-Victor, 17-0695 (La. App. 4 Cir. 5/16/18), 248 So.3d 449, 453).

Moreover, La. C.C.P. art. 891 states that a petition “shall contain a short, clear,

and concise statement of all causes of action arising out of, and of the material facts

of, the transaction or occurrence that is the subject matter of the litigation.” The

Louisiana Supreme Court explained in Udomeh v. Joseph, 11-2839 (La. 10/26/12),

103 So.3d 343, 349, that:

In order to plead “material facts” within Louisiana's fact-pleading
system, the pleader must “state what act or omission he or she will
establish at trial, such as the fact the defendant failed to deliver goods
by a designated date, exceeded the speed limit, or failed to pay workers’
compensation benefits although the evidence in his or her possession
clearly established a compensable injury and disability.”

Id. (quoting Greemon v. City of Bossier City, 10-2828, 11-0039 (La. 7/1/11), 65

So.3d 1263, 1268-69). Additionally, “[l]egal conclusions asserted as facts are not

considered well-pled factual allegations for purposes of an exception of no cause of

action.” Henderson, 335 So.3d at 353; Ramey v. DeClaire, 03-1299 (La. 3/19/04),

869 So.2d 114, 118 (recognizing that mere conclusions unsupported by facts are not

sufficient to set forth a cause of action). “It is insufficient for the petition to simply

state factual conclusions without setting forth the facts that support the conclusions;

consequently, any allegations which are no more than factual conclusions shall be

disregarded.” Merrick Const. Co., Inc. v. State, 97-0110 (La. App. 1 Cir. 9/19/97),

700 So.2d 236, n. 4 (citing Kahn v. Jones, 95-259 (La. App. 3 Cir. 11/2/95), 664

So.2d 700, 704-05).

In order to prevail on a breach of contract claim, the plaintiff must establish

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by a preponderance of the evidence that the defendant owed him an obligation; the

defendant failed to perform the obligation; and defendant’s failure to perform

resulted in damages to the plaintiff. Stipp v. MetLife Auto & Home Ins. Agency, Inc.,

17-61 (La. App. 5 Cir. 8/30/17), 255 So.3d 1182, 1189.

In the present case, Kimbrough’s, Inc.’s reconventional demand alleges that

Ms. Kuykendall and Kimbrough Inc. “entered into a contractual relationship to

perform certain work at [Ms. Kuykendall’s residence].” In connection with that

work, the reconventional demand alleges that Ms. Kuykendall agreed to pay

Kimbrough’s Inc. $33,000.00; however, it alleges that Ms. Kuykendall added

elements to the original contract’s scope of work. The reconventional demand

further claims:

In order to accept the job…[Kimbrough’s Inc.] gave up and/or turned
down several other contracts to build pools and complete work at other
residences.

After entering into a contract with [Kimbrough’s Inc.] and causing [it]
to commit to completing construction at Ms. Kuykendall’s home and
forgo other construction opportunities, [Ms. Kuykendall] breached her
contract with [Kimbrough’s Inc.].

As a result of the actions of [Ms. Kuykendall], [Kimbrough’s Inc.] has
suffered financial loss and damage.

After reviewing the reconventional demand, we find Kimbrough’s Inc.’s

reconventional demand does not provide a factual basis for its conclusions that Ms.

Kuykendall is liable for breach of contract. While the reconventional demand

alleges the existence of a contract, it does not allege what specific actions Ms.

Kuykendall took or failed to take that breached the contractual agreement between

the parties. The most specific factual allegation made in the reconventional demand

states only that Ms. Kuykendall “added elements to the original contract’s scope of

work” without specifying what those added elements were or how they breached the

contract. Additionally, Kimbrough’s Inc. neither alleges in its reconventional

demand nor attaches documents which suggest that its contract with Ms. Kuykendall

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expressly prevented Ms. Kuykendall from adding to the scope of the work.

Furthermore, Kimbrough’s Inc. does not allege that it performed any services

contemplated by the contract and for which money was owed under the contract, or

that Ms. Kuykendall refused to pay monies Kimbrough’s Inc. was owed under the

contract. Instead, the reconventional demand makes only conclusory statements that

Ms. Kuykendall breached the contract. Because the reconventional demand fails to

provide material facts to support its conclusions, we find the trial court erred in

overruling the exception of no cause of action.

Accordingly, we reverse the trial court’s judgment overruling the exception

of no cause of action and find that Kimbrough’s Inc., in its reconventional demand,

failed to state a cause of action for breach of contract. Nonetheless, pursuant to La.

C.C.P. art. 934, the trial court is authorized to allow the party an opportunity to

amend his petition when it fails to state a cause of action and “the grounds of the

objection pleaded… may be removed by amendment of the petition.” In this case,

the trial court, in overruling the exception, indicated that while it found there was

“enough specificity” to “survive the day,” it expressed concern that even if

Kimbrough’s Inc. was afforded an opportunity to amend, it was not clear “how much

more [Kimbrough’s Inc.] could add to it.”

Clearly, “a petition should not be dismissed for failure to state a cause of

action unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of any claim which would entitle him to relief.” Fink v. Bryant, 01-987 (La.

11/28/01), 801 So.2d 346, 349. While we agree that it is not clear what more

Kimbrough’s Inc. could add to its reconventional demand, we find that Kimbrough’s

Inc. is entitled to an opportunity to remove the grounds for the exception by

amending its petition. Therefore, we grant the writ, reverse the trial court’s judgment

overruling the exception of no cause of action, and remand the matter back to the

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trial court to allow Kimbrough’s Inc. an opportunity to amend its reconventional

demand with sufficient facts to support its allegations of breach of contract.

Gretna, Louisiana, this 10th day of May, 2023.

FHW
SMC
CER

6

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM 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
www.fifthcircuit.org

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THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

23-C-106
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Donald A. Rowan, Jr. (DISTRICT JUDGE)
Frank G. DeSalvo (Respondent) Graham H. Williams (Relator)
Ashley M. Caruso (Relator)

MAILED
Shannon R. Bourgeois (Respondent)
Attorney at Law
739 Baronne Street
New Orleans, LA 70113

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