Mark A. Furlow v. Byron E. Trust and PetroChem Operating Company, Inc

Judgment rendered December 18, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,911-CW

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

MARK A. FURLOW Respondent

versus

BYRON E. TRUST AND PETRO- Applicants
CHEM OPERATING COMPANY,
INC.

*****

On Application for Writs from the
Second Judicial District Court for the
Parish of Claiborne, Louisiana
Trial Court No. 42,595

Honorable Walter E. May, Jr., Judge

*****

COOK, YANCEY, KING & GALLOWAY Counsel for Applicants
By: John T. Kalmbach
W. Drew Burnham
J. Bert Babington

COLVIN, SMITH, McKAY & BAYS Counsel for Respondent
By: James H. Colvin, Jr.
Daniel N. Bays, Jr.

*****

Before PITMAN, STONE, and STEPHENS, JJ.

PITMAN, C. J.

Defendants-Applicants Byron E. Trust and Petro-Chem Operating

Company, Inc. (“Petro-Chem”) seek supervisory writs on the district court’s

denial of their motion for summary judgment in favor of Plaintiff-

Respondent Mark A. Furlow. For the following reasons, we grant the writ,

reverse the judgment of the district court and grant Trust and Petro-Chem’s

motion for summary judgment, dismissing Furlow’s petition with prejudice.

FACTS

On February 25, 2022, Furlow filed a petition for damages against

Petro-Chem and Trust, who is Petro-Chem’s chief operating officer. He

stated that he is a plaintiff in a class action lawsuit filed on January 31, 2022,

against Petro-Chem for conversion of minerals. Furlow alleged that on

February 24, 2022, Trust contacted his employer, Roberson Trucking

Company, Inc. (“Roberson Trucking”), and asked its owner, Ricky Roberson

(“Roberson”), if he still worked there; Roberson confirmed that he did; and

Trust informed Roberson that if Furlow continued to work there, Petro-

Chem would cease using Roberson Trucking as a vendor. Furlow stated that

Roberson then terminated him due to the volume of business that Roberson

Trucking does with Petro-Chem. He argued that these actions by Trust,

individually and on behalf of Petro-Chem, constitute unfair and/or deceptive

acts in violation of the Louisiana Unfair Trade Practices Act (“LUTPA”).

He stated that his injuries include past and future lost wages, past and future

lost business opportunities, general damages, attorney fees and costs.

On October 30, 2023, Trust and Petro-Chem filed an answer and

denied Furlow’s allegations. They argued that Furlow failed to state a cause

of action because as an at-will employee, his termination cannot be the basis

for a claim under LUTPA. They stated that Furlow has not alleged any

actual damages they caused or for which they are liable.

On November 2, 2023, Trust and Petro-Chem filed a motion for

summary judgment. They argued that even if Furlow’s allegations are true,

he has not stated a cause of action against them under LUTPA. They

explained that as Louisiana is an at-will employment state, Furlow can be

terminated for any reason, regardless of whether the reason was accurate,

fair or reasonable. They contended that even if Furlow stated a cause of

action, there are no genuine issues of material fact that Trust or any other

Petro-Chem representative had anything to do with Furlow’s termination.

On March 18, 2024, Furlow filed an opposition to the motion for

summary judgment, stating that the basis of his lawsuit is that Trust and

Petro-Chem violated LUTPA by giving Roberson an ultimatum to either

terminate him or no longer have Petro-Chem as a client. He argued that

genuine issues of material fact exist regarding whether Trust and/or Petro-

Chem threatened to stop working with Roberson Trucking unless Roberson

terminated him in retaliation for his suit against Petro-Chem.

A hearing on the motion for summary judgment was held on April 4,

2024. The district court denied the motion for summary judgment, finding

that there is a genuine issue of material fact in this matter.

Trust and Petro-Chem applied for supervisory writs. This court

granted the writ to docket.

DISCUSSION

In their sole assignment of error, Trust and Petro-Chem argue that the

district court erred by denying their motion for summary judgment. They

contend that as an at-will employee, Furlow has no cause of action against
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them, under LUTPA or otherwise, for the termination of his employment,

even if his unsubstantiated version of the facts is accepted as true. They

argue that the termination of an at-will employee cannot serve as the basis

for a claim under LUTPA and that Furlow cannot circumvent this law by

suing them as third parties rather than his employer.

Furlow argues that the district court did not abuse its discretion by

denying the motion for summary judgment. He contends that it correctly

concluded that it was not in a position to determine whether Trust demanded

that Roberson terminate Furlow. He argues that Trust’s actions are

violations of LUTPA as they violate public policy and are unethical,

oppressive, unscrupulous or substantially injurious.

A motion for summary judgment shall be granted if the motion,

memorandum and supporting documents show that there is no genuine issue

as to material fact and that the mover is entitled to judgment as a matter of

law. La. C.C.P. art. 966(A)(3). The burden of proof rests with the mover.

La. C.C.P. art. 966(D)(1). The burden is on the adverse party to produce

factual support sufficient to establish the existence of a genuine issue of

material fact or that the mover is not entitled to judgment as a matter of law.

Id. A fact is material when its existence or nonexistence may be essential to

a plaintiff’s cause of action under the applicable theory of recovery.

Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So. 3d 791. A

fact is material if it potentially ensures or precludes recovery, affects a

litigant’s ultimate success or determines the outcome of the legal dispute.

Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So. 2d 764. A genuine issue is

one as to which reasonable persons could disagree. Id. If reasonable

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persons could reach only one conclusion, there is no need for a trial on that

issue and summary judgment is appropriate. Id.

Appellate courts review motions for summary judgment de novo,

using the same criteria that govern the district court’s determination of

whether summary judgment is appropriate. Noland v. Lenard, 55,342 (La.

App. 2 Cir. 11/15/23), 374 So. 3d 1133, writ denied, 23-01670 (La. 2/14/24),

379 So.3d 32.

In Quebedeaux v. Dow Chem. Co., 01-2297 (La. 6/21/02), 820 So. 2d

542, the Louisiana Supreme Court discussed Louisiana’s at-will employment

doctrine and stated:

The employer-employee relationship is a contractual
relationship. . . . When the employer and employee are silent
on the terms of the employment contract, the civil code
provides the default rule of employment-at-will. . . . This
default rule is contained in LSA–C.C. art. 2747.

Under LSA–C.C. art. 2747, generally, “an employer is at liberty
to dismiss an employee at any time for any reason without
incurring liability for the discharge.” See Williams v. Delta
Haven, Inc., 416 So.2d 637 (La. App. 2nd Cir.1982). However,
this right is tempered by numerous federal and state laws which
proscribe certain reasons for dismissal of an at-will employee.
. . . Aside from the federal and state statutory exceptions, there
are no “[b]road policy considerations creating exceptions to
employment at will and affecting relations between employer
and employee.” See Gil v. Metal Service Corp., 412 So. 2d 706,
708 (La. App. 4th Cir. 1982).

See also Hayes v. Univ. Health Shreveport, LLC, 21-01601 (La. 1/7/22),

332 So. 3d 1163.

LUTPA declares unfair methods of competition and unfair or

deceptive acts or practices in the conduct of any trade or commerce to be

unlawful. La. R.S. 51:1405(A). Any person who suffers any ascertainable

loss of money or movable property, corporeal or incorporeal, as a result of

the use or employment by another person of an unfair or deceptive method,
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act or practice declared unlawful by R.S. 51:1405 may bring an action

individually. La. R.S. 51:1409(A). The range of prohibited practices under

LUTPA is extremely narrow. Cheramie Servs., Inc. v. Shell Deepwater

Prod., Inc., 09-1633 (La. 4/23/10), 35 So. 3d 1053. LUTPA does not

prohibit sound business practices, the exercise of permissible business

judgment or appropriate free enterprise transactions. Id., quoting Turner v.

Purina Mills, Inc., 989 F.2d 1419 (5th Cir. 1993). Only egregious actions

involving elements of fraud, misrepresentation, deception or other unethical

conduct will be sanctioned based on LUTPA. Cheramie Servs., Inc. v. Shell

Deepwater Prod., Inc., supra. Under LUTPA, the plaintiff must show the

alleged conduct offends established public policy and is immoral, unethical,

oppressive, unscrupulous or substantially injurious. Id., citing Moore v.

Goodyear Tire & Rubber Co., 364 So. 2d 630 (La. App. 2 Cir. 1978).

In the case sub judice, Furlow was an at-will employee of Roberson

Trucking, and Roberson was at liberty to terminate his employment at any

time for any reason. Terminating an at-will employee is not an unfair trade

practice. See In re Anderson, 539 B.R. 277 (Bankr. W.D. La. 2015); Sonnier

v. Diversified Healthcare-Lake Charles, LLC, 22-420 (La. App. 3 Cir.

4/26/23), 364 So. 3d 1213.

Furlow notably did not seek relief against his employer for wrongful

termination but rather sought a LUTPA claim against Trust and Petro-Chem,

who were involved in business with Roberson and Roberson Trucking.

Furlow cannot use a LUTPA claim against third parties as pretext to avoid

an unsuccessful claim of tortious interference of contract against them. See

Durand v. McGaw, 635 So. 2d 409 (La. App. 4 Cir. 1994), writ denied,

640 So. 2d 1318 (La. 1994). No genuine issues as to material fact exist in
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this case. It is clear from the motion, memorandum and supporting

documents that Furlow cannot succeed in his LUTPA claim against Trust

and Petro-Chem, even if his allegations of the telephone call between Trust

and Roberson are true. The record in this case demonstrates that Trust and

Petro-Chem—and Roberson and Roberson Trucking—were engaged in

sound business practices and permissible business judgment that did not

violate the narrow range of prohibited practices under LUTPA.

Accordingly, we find that this assignment of error has merit.

CONCLUSION

For the foregoing reasons, we grant the writ, reverse the judgment of

the district court, grant the motion for summary judgment filed by

Defendants-Applicants Byron E. Trust and Petro-Chem Operating Company,

Inc. and dismiss with prejudice Plaintiff-Respondent Mark A. Furlow’s

petition. Costs of this appeal are assessed to Plaintiff-Respondent Mark A.

Furlow.

WRIT GRANTED; JUDGMENT REVERSED; JUDGMENT

RENDERED; PETITION DISMISSED WITH PREJUDICE.

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