Michael R. Garber v. Badon & Ranier

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1497

MICHAEL R. GARBER

VERSUS

BADON & RANIER, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2001-5624
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Glenn B. Gremillion, Judges.

AFFIRMED.

Patrick J. Briney
Briney & Foret
P. O. Box 51367
Lafayette, LA 70505-1367
Telephone: (337) 237-4070
COUNSEL FOR:
Defendants/Appellees - Kenneth E. Badon, Drew Averill Ranier, and
Kenneth E. Badon, APLC

Bobby L. Culpepper
Culpepper & Carroll, PLLC
525 East Court Avenue
Jonesboro, LA 71251
Telephone: (318) 259-4184
COUNSEL FOR:
Plaintiff/Appellant - Michael R. Garber

James B. Doyle
P. O. Box 5241
Lake Charles, LA 70606-5241
Telephone: (337) 474-9989
COUNSEL FOR:
Defendants/Appellees - Kenneth E. Badon, Badon & Ranier, and
Kenneth E. Badon, APLC

Merrick J. (Rick) Norman, Jr.
Norman Business Law Center
145 East Street
Lake Charles, LA 70601
Telephone: (337) 436-7787
COUNSEL FOR:
Defendants/Appellees - Kenneth E. Badon and Kenneth E. Badon,
APLC

Charles Stovall Weems, III
Gold, Weems, Bruser, el al.
P. O. Box 6118
Alexandria, LA 71307-6118
Telephone: (318) 445-6471
COUNSEL FOR:
Defendants/Appellees - Drew Averill Ranier and Drew A. Ranier,
APLC

THIBODEAUX, Chief Judge.

This case involves a dispute between attorneys regarding the nature of

their fourteen year legal affiliation. The plaintiff/appellant, Michael R. Garber, filed

suit in 2002 against the defendants/appellees, Kenneth E. Badon and Drew A. Ranier,

against the partnership under which they practiced, and against their separate law

corporations. Garber alleged a joint venture and special partnership relationship that

entitled him to an accounting and fee participation in the law suits of Badon & Ranier

Partnership (“Badon & Ranier” or “Partnership” or “Firm”), particularly in the

tobacco litigation, oil and gas royalties, medicaid recovery, and asbestos remediation

suits. In addition to the joint venture and special partnership causes of action, Garber

also sought recovery under detrimental reliance and unjust enrichment theories of

liability.

Badon and Ranier filed numerous exceptions and a motion for summary

judgment, resulting in various rulings, and culminating in the dismissal of all of

Garber’s claims via comprehensive final judgment dated September 24, 2007. Garber

appealed. For the reasons set forth below, we affirm the final judgment of the trial

court.

I.

ISSUES

We must decide:

(1) whether the trial court erred in granting the
defendants’ exception of no right of action as to the
partnership, accounting and fee participation claims;

(2) whether the trial court erred in dismissing Garber’s
claims under an unjust enrichment cause of action;

(3) whether the trial court erred in granting the
defendants’ motion for summary judgment regarding
Garber’s joint venture claim; and,

(4) whether the trial court erred in granting the
defendants’ motion for summary judgment regarding
Garber’s detrimental reliance claim.

II.

FACTS AND PROCEDURAL HISTORY

Badon and Ranier began working together in 1986 and in April of 1987

organized the Badon & Ranier Partnership. Tax returns show that Kenneth Badon,

APLC, and Drew Ranier, APLC, each owned fifty percent (50%) of the Partnership’s

capital, fifty percent (50%) of its profits, and fifty percent (50%) of its losses. Garber

practiced with Badon and Ranier from 1986 until the termination of the Partnership

around 2000. Garber’s name appeared on the firm’s letterhead and in the firm’s

Martindale Hubbell listing, as did the names of other attorneys associated with the

firm at various times. While sharing office space with the Badon & Ranier

Partnership, Garber also maintained a separate law practice, his own letterhead, and

his own phone line.

The Partnership handled primarily contingency fee cases, but it also

handled flat fee cases involving domestic, business, and criminal matters. Garber was

paid for the work that he did on the Partnership’s cases based upon the invoices that

he submitted showing his hourly billing, or he was paid one half of the flat fee

charged. Garber sometimes received bonuses from the Partnership. He was paid a

$5,000.00 bonus by the Partnership after the tobacco case was successfully resolved.

Other Badon and Ranier personnel were also given fixed dollar bonuses. Sometimes,

when the partnership declined representation on a particular matter, Garber undertook

the representation and collected the entire fee. Garber corresponded with these

clients on his own letterhead and on the Partnership’s letterhead. Garber did not

share the fees from his law practice with Badon and Ranier.

2

The Badon & Ranier firm purchased professional liability insurance

through Coregis Insurance Organizations. The Coregis Insurance application

designated Garber as “OC,” i.e., of counsel. The application further stated that

Garber’s office was located in Badon & Ranier’s office and that he was there a

minimum of forty hours per week. It further stated that, “Mr. Garber is paid by the

hour on cases he works for Badon & Ranier” and that “his pay scale takes into

account the firm pays premiums on Professional Liability Insurance and all of his

general overhead expenses.” The application also stated that Garber worked eighty

hours per month, twenty hours per week, for Badon & Ranier and that he was not a

prior partner, officer, director, shareholder or employee.

Garber characterizes his association and work with Badon and Ranier as

one of a joint venturer and special partner, alleging that he left one half of his billable

hours and one half of the flat fees earned on their cases with the Partnership as his

contribution to the firm for office expenses and cost of the cases. He filed suit in

2002 against the Badon & Ranier Partnership, against Badon and Ranier individually,

and against their separate professional law corporations. The suit was based upon

alleged broken promises or representations made primarily by Drew Ranier that

everyone would grow very rich if a successful result was obtained in certain

litigation, particularly the tobacco litigation, and the lawyers involved would not have

to practice law thereafter. Garber seeks an accounting of the fees earned by the firm

during his association with it and seeks to participate with Badon and Ranier for a

percentage of those fees, particularly with regard to the tobacco litigation, the royalty

litigation, and asbestos cases. In addition to the joint venture and special partnership

claims, Garber also asserted claims under unjust enrichment and detrimental reliance.

3

Badon and Ranier characterize Garber as a part-time contract attorney

who is not entitled to an accounting and not entitled to participate in the fees earned

by the partnership. They filed an exception of no right of action with regard to the

partnership, accounting, and fee participation claims, which was granted by the trial

court in June of 2005. In March of 2007, the defendants filed an exception of no

cause of action with regard to the unjust enrichment claim, which was granted in May

of 2007. The defendants’ motion for summary judgment regarding the joint venture

and detrimental reliance claims was granted on both issues in September 2007. The

September judgment was designated by the court as a final judgment incorporating

all previous rulings and dismissing all claims against the defendants.

III.

LAW AND DISCUSSION

Standards of Review

The determination of whether a plaintiff has a right of action is a

question of law which is subject to a de novo review. DeReyna v. Pennzoil

Exploration, 04-97 (La.App. 3 Cir. 8/4/04), 880 So.2d 124, writ denied, 04-2261 (La.

11/19/04), 888 So.2d 197. In reviewing a trial court’s ruling sustaining an exception

of no cause of action, we review the case de novo because the exception raises a

question of law and because the lower court’s decision is based only on the

sufficiency of the petition. Esclovon v. Fondel, 04-280 (La.App. 3 Cir. 12/22/04),

890 So.2d 770.

Likewise, appellate courts review motions for summary judgments de

novo, asking the same questions that the trial court asks to determine whether

summary judgment is appropriate. Champagne v. Ward, 03-3211 (La. 1/19/05), 893

So.2d 773. This inquiry seeks to determine whether any genuine issue of material

4

fact exists and whether the mover is entitled to judgment as a matter of law. La.Code

Civ.P. art. 966 (C)(1). “A fact is material if it potentially insures or precludes

recovery, affects a litigant’s ultimate success, or determines the outcome of a legal

dispute.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

Partnership, Accounting and Fee Participation

Garber’s original and first supplemental petitions in this matter claim

that he is entitled to a complete accounting of the fees earned on each separate

undertaking by the firm, by himself, or by Badon and Ranier in any capacity, on

which any work was done in the last ten years, and that he is entitled to a share of the

fees recorded. Garber contends that the trial court erred in granting the defendants’

exception of no right of action as to the partnership, accounting and fee participation

claims. We find no error on the part of the trial court in this regard.

As the trial court explained in its written reasons for granting the

exception, the purpose of the exception of no right of action is to determine whether

the plaintiff belongs to the class of persons to whom the law grants the cause of

action asserted in the suit. It assumes that the petition states a valid cause of action

and questions whether the plaintiff in the particular case has a legal interest in the

subject matter of the litigation. La.Code Civ.P. art. 927; Moreau v. Avoyelles Parish

School Bd., 04-1613 (La.App. 3 Cir. 3/9/05), 897 So.2d 875, writs denied, 05-910,

05-997 (La. 6/17/05), 904 So.2d 704,705. The defendant claiming the exception must

show that the plaintiff does not have an interest in the subject matter of the suit or that

he does not have the legal capacity to proceed with the suit. Goulas v. Denbury

Mgmt., Inc., 00-935 (La.App. 3 Cir. 12/6/00), 774 So.2d 346.

The applicable Civil Code articles on partnership state in pertinent part

as follows:

5

La.Civ.Code art. 2801. Partnership; definition

A partnership is a juridical person, distinct from its
partners, created by a contract between two or more
persons to combine their efforts or resources in determined
proportions and to collaborate at mutual risk for their
common profit or commercial benefit.

La.Civ.Code art. 2803. Participation of partners

Each partner participates equally in profits,
commercial benefits, and losses of the partnership, unless
the partners have agreed otherwise. The same rule applies
to the distribution of assets, but in the absence of contrary
agreement, contributions to capital are restored to each
partner according to the contribution made.

La.Civ.Code art. 2807. Decisions affecting the partnership

Unless otherwise agreed, unanimity is required to
amend the partnership agreement, to admit new partners, to
terminate the partnership, or to permit a partner to
withdraw without just cause if the partnership has been
constituted for a term.

Decisions affecting the management or operation of
a partnership must be made by a majority of the partners,
but the parties may stipulate otherwise.

La.Civ.Code art. 2812. The sharing of a partner’s interest
with a third person

A partner may share his interest in the partnership
with a third person without the consent of his partners, but
he cannot make him a member of the partnership.

La.Civ.Code art. 2813. The right of a partner to obtain
information

A partner may inform himself of the business
activities of the partnership and may consult its books and
records, even if he has been excluded from management.
A contrary agreement is null.

He may not exercise his right in a manner that
unduly interferes with the operations of the partnership or
prevents other partners from exercising their rights in this
regard.

6

La.Civ.Code art. 2837. Partnership in commendam;
definition

A partnership in commendam consists of one or
more general partners who have the powers, rights, and
obligations of partners, and one or more partners in
commendam, or limited partners, whose powers, rights,
and obligations are defined in this Chapter.

La.Civ.Code art. 2841. Contract form; registry

A contract of partnership in commendam must be in
writing and filed for registry with the secretary of state as
provided by law. Until the contract is filed for registry,
partners in commendam are liable to third parties in the
same manner as general partners.

After discussing articles 2801, 2803, and 2813 above, the trial court

found that Garber had no right of action for an accounting or for fee participation as

a partner in the Badon & Ranier Partnership because the parties had entered a

stipulation that Garber was not a partner in the law firm. Therefore, the trial court

found that Garber was not a member of the class of individuals to be protected by

articles 2803 and 2813 of the Civil Code, which provide for a partner’s participation

in profits and losses and a partner’s right to an accounting. We agree. While we did

not locate a written document entitled “Stipulation” in the record, the stipulation was

discussed in open court. Further, the record contains the deposition testimony of

Michael Garber wherein he admits that he never signed an agreement of any kind

with the defendants.

More specifically, a hearing was held on various exceptions on January

7, 2005. The following excerpt is from the transcript of that hearing:

Mr. Doyle:

. . . . Your Honor, I want to also take note of
the fact that we did have a status conference
with you yesterday in of which Mr. Culpepper
participated by phone . . . for which issues we
would need to put testimony on the record,

7

and I don’t believe there is going to be any
because, as I understand it, our agreement is
that Mr. Garber is not claiming that he was a
partner in the Badon & Ranier Partnership. Is
that right Mr. Culpepper?

Mr. Culpepper:

Plaintiff claims that he was a special partner.
Insofar as saying that there was an equal
partnership or an equal partner as to divide it
three ways or anything like that, then we do
not contend that, and we do [?] contend that
there were any written Articles of
Incorporation or Partnership. We do claim
that he was a special partner and it was a joint
venture and that representations were made.

The Court:

Is this within one course of litigation or a
number of clients, is what I think I had
understood yesterday that you believed that it
was within only one litigant?

Mr. Culpepper:

The primary thing here is the tobacco
litigation in which we contend there was a
joint venture there. On a day-to-day basis in
handling divorces and handling the normal
routine sort of thing, we do not contend that at
that point there was an equal partnership.

At the same hearing, Mr. Garber testified that he “was not a member of

any partnership for which tax returns were filed. If there was a Badon & Ranier

Partnership, it was between Ken Badon, APLC and Drew Ranier, APLC.” Garber

further testified that he never signed a partnership agreement, employment agreement,

or loan for the operation of the firm. He also testified that he received a 1099, not a

W-2, for reporting the income that he received from Badon & Ranier. Both Drew

Ranier and Kenneth Badon submitted affidavits stating that they were the only two

8

partners in the firm. Kay Watson, a member of the office personnel at Badon &

Ranier, testified by deposition that she believed that Garber was an associate.

Jan Badon Gayle testified by affidavit in May of 2007 that she had been

employed with Ken Badon continuously since 1972, that she prepared 1099s and

other tax information, prepared, executed, and maintained contingency fee contracts,

and disbursed funds for Badon & Ranier. She stated that Garber was never allocated

income as a partner, and that payments to him were treated as an expense. She further

stated that no contingency fee contract executed by any client during Garber’s tenure

with Badon & Ranier ever listed Garber as an attorney who was entitled to all or a

portion of any contingency fee. Ms. Gayle attested to the fact that Garber billed and

received from the firm a total of $730,572.99 during his employment there. She

stated that for a while, Garber was on a draw system, wherein he could draw up to

$48,000.00 per annum for work he invoiced on an hourly basis; that at least on one

occasion, he did not submit bills equal to his draw.

Ms. Gayle further stated that Garber received a 1099 showing his receipt

of funds as an independent contractor. She also confirmed that he submitted one bill

for 24.5 hours and $1,225.00 in the tobacco litigation. She further attested to the fact

that Garber received a year-end, gratuitous bonus of $10,000.00 in 1993, and that he

was paid a $5,000.00 bonus by the Partnership and a $5,000.00 bonus by Kenneth E.

Badon (APLC) after the tobacco case was resolved. On both occasions, other

employees of Badon & Ranier Partnership received bonuses as well.

Accordingly, based upon the foregoing, the trial court did not err in

granting the defendants’ exception of no right of action regarding Garber’s claims for

an accounting and for fee participation as a partner in Badon & Ranier under the Civil

Code articles governing partnership.

9

Unjust Enrichment

Garber asserts that the trial court erred in granting the defendants’

exception of no cause of action and dismissing Garber’s claims of unjust enrichment.

Our Civil Code provides as follows:

La.Civ.Code art. 2298. Enrichment without cause;
compensation

A person who has been enriched without cause at the
expense of another person is bound to compensate that
person. The term “without cause” is used in this context to
exclude cases in which the enrichment results from a valid
juridical act or the law. The remedy declared here is
subsidiary and shall not be available if the law provides
another remedy for the impoverishment or declares a
contrary rule.

The amount of compensation due is measured by the
extent to which one has been enriched or the other has been
impoverished, whichever is less.

The extent of the enrichment or impoverishment is
measured as of the time the suit is brought or, according to
the circumstances, as of the time the judgment is rendered.

The elements of an unjust enrichment claim are as follows: There must

be (1) an enrichment of the defendant; (2) an impoverishment of the plaintiff; (3) a

connection between the enrichment and the resulting impoverishment; (4) an absence

of justification or cause for the enrichment and impoverishment; and, (5) there must

be no other remedy at law available to plaintiff. Baker v. MacLay Properties Co.,

94-1529 (La. 1/17/95), 648 So.2d 888.

Garber provides no argument on this issue other than to recite the

elements above and to contend that, where the exception was granted on the basis of

other available remedies, he now has no other remedies because he has lost on the

partnership, joint venture, and detrimental reliance causes of action. We disagree.

Under element number five above, it is not the success or failure of other causes of

10

action, but rather the existence of other causes of action, that determine whether

unjust enrichment can be applied. “[U]njust enrichment principles are only applicable

to fill a gap in the law where no express remedy is provided.” Louisiana Nat’l. Bank

of Baton Rouge v. Belello, 577 So.2d 1099, 1102 (La.App. 1 Cir. 1991); see also

Coastal Envtl. Specialists, Inc. v. Chem-Lig Int’l., Inc., 00-1936 (La.App. 1 Cir.

11/9/01), 818 So.2d 12. “An action for unjust enrichment is allowed only when the

plaintiff has no other remedy at law. . . . [W]here there is a rule of law directed to the

issue, an action must not be allowed to defeat the purpose of said rule.” Carriere v.

Bank of Louisiana, 95-3058, p. 12 (La. 12/13/96), 702 So.2d 648, 657. Further,

Morphy, Makofsky & Masson, Inc. v. Canal Place 2000, 538 So.2d 569 (La.1989)

held that the existence of a claim on an express or implied contract precludes

application of the unjust enrichment theory, because the potential claim constitutes

a practical remedy at law available to the impoverishee.

The courts have stated the function of the exception of no cause of action

as follows:

The peremptory exception of no cause of action is
designed to test the legal sufficiency of the petition by
determining whether the plaintiff is afforded a remedy in
law based on the facts alleged in the pleading. In other
words, the exception pleading the objection of no cause of
action, tests whether, under the allegations of the petition,
the law affords any remedy for the grievance asserted. In
ruling on the exception, the court must accept all
well-pleaded allegations of fact as true. No evidence may
be introduced to support or controvert the objection of no
cause of action. La.Code Civ.P. art. 931.

Teche Fin. Servs., Inc. v. State, Dept., of Pub. Safety, Office of Motor Vehicles,

06-250, p. 2, 3 (La.App. 3 Cir. 9/27/06), 939 So.2d 650, 652 (citations omitted).

Garber’s original 2002 petition pleaded only joint venture and

partnership causes of action and sought an accounting of and participation in the fees

11

earned by the firm. His first supplemental petition, filed in December of 2003, added

the claim of detrimental reliance, alleging that Garber was induced to stay with the

firm as a result of representations that the tobacco litigation would pay richly and

enable everyone to retire from practicing law. Garber’s second supplemental petition,

filed in September of 2006, alleged the five elements of unjust enrichment by

providing a one sentence paragraph on each element declaring that the defendants

were enriched, that Garber was impoverished, that there was a connection between

the enrichment and the impoverishment, that there was no justification or cause for

the enrichment and impoverishment, and that if his claims of joint venture and

detrimental reliance failed, he was entitled to an award on the unjust enrichment

claim. However, his two-page supplemental petition alleged very few facts to

indicate an unjust enrichment remedy. The only facts alleged appeared in the

following paragraphs:

25.

While a member of the Badon & Ranier Law Firm,
GARBER contributed his effort, knowledge and labor in
the preparation and handling of the tobacco litigation for
which he was never compensated which unjustly enriched
defendants at GARBER’S expense.

32.

Plaintiff has been impoverished by defendants’ retention of
funds herein from the tobacco litigation.

33.

The plaintiff contributed to the receipt by defendants of the
funds in question by providing services outlined
hereinabove.

34.

The plaintiff was not compensated by receiving any
percentage of the funds in question, or even being
compensated on a quantum meruit basis.

12

With regard to the pleading of facts showing impoverishment and

enrichment, these scanty facts fall short of the well-pleaded allegations of fact

referenced above in the Teche Financial case. Moreover, the pleading fails to allege

any fact showing that there was no justification or cause for the enrichment, which

is a necessary element in this cause of action. Our Civil Code specifically excludes

the remedy in cases in which the enrichment results from a valid juridical act or the

law. La.Civ.Code art. 2298. More specifically,

“Not every unjust enrichment warrants usage of equity.
Courts may resort to equity only in cases of unjust
enrichment for which there is no justification in law or
contract. In other words, an enrichment is justified if it is
the result of, or finds its explanation in, the terms of a valid
judicial act between the impoverishee and enrichee or
between a third party and the enrichee. Edmonston v.
A-Second Mortgage, [289 So.2d 116 (La. 1974)].”

Pilgrim Life Ins. Co. of America v. American Bank & Trust Co. of Opelousas, 542

So.2d 804, 807 (La.App. 3 Cir. 1989). In the present case, the enrichment of the

defendants has a cause and is justified as it is comprised of fees earned through great

effort by the firm in the tobacco litigation resulting from a valid contract between the

Badon & Ranier Partnership and a third party, its client(s). Further, the record

indicates that the collective cost of the tobacco litigation to the groups of firms

involved was two million dollars. Accordingly, this is not a case of enrichment

without cause.

We find no error in the trial court’s granting of the defendants’ exception

of no cause of action with regard to the unjust enrichment cause of action.1

1
The trial court again addressed the failure of the unjust enrichment claim at the final hearing
that disposed of all claims, the hearing on the motion for summary judgment on joint venture and
detrimental reliance, that took place in August of 2007, prior to the comprehensive September 2007
Final Judgment. At the August hearing, the trial court stated that in the event that the unjust
enrichment claim were reurged, he found Moroux v. Toce, 06-831 (La.App. 3 Cir. 11/2/06), 943
So.2d 1263, writ denied, 07-117 (La. 3/16/07), 952 So.2d 698 dispositive of the unjust enrichment
claim as well as dispositive of the joint venture and detrimental reliance claims. Under very similar
facts in Moroux, the trial court found that the evidence failed to substantiate that the plaintiff suffered

13

Summary Judgment

Badon and Ranier filed their Motion for Summary Judgment/Partial

Summary Judgment asking the court to grant summary judgment dismissing Garber’s

claims, or in the alternative, to grant partial summary judgment dismissing all claims

proper for dismissal. The motion sought to have Garber’s claims of joint venture and

detrimental reliance dismissed on summary judgment. At the end of the hearing on

the motion, the trial court pointed out that a defendant’s burden of proof on a motion

for summary judgment does not require him to negate all essential elements of the

plaintiff’s claim, but rather to show the court that there is an absence of factual

support for one or more elements essential to the plaintiff’s claims, actions, or

defenses. The burden then shifts to the plaintiff to produce factual support sufficient

to establish that he will be able to satisfy his evidentiary burden of proof at trial. If

he is unable to do so, then there is no genuine issue of material fact. La.Code Civ.P.

art. 966 (C)(2).

The trial court then granted summary judgment in favor of the

defendants on both issues, dismissing Garber’s claims of joint venture and

detrimental reliance. The court cited Moroux v. Toce, 06-831 (La.App. 3 Cir.

11/2/06), 943 So.2d 1263, writ denied, 07-117 (La. 3/16/07), 952 So.2d 698, as an

analogous case bearing significant weight as to both issues in the summary judgment

motion and also as to the unjust enrichment claim, which he had previously dismissed

pursuant to an exception of no cause of action.

an impoverishment.

14

Joint Venture

Garber contends that the trial court erred in granting summary judgment

on the joint venture claim. A joint venture results from two or more persons

undertaking to combine their efforts, knowledge, property, or labor to engage in and

carry out a single business venture for joint profit, where profits and losses are shared,

with each party having some right of control over the business. Moroux v. Toce, 943

So.2d 1263; Cajun Elec. Power Coop., Inc. v. McNamara, 452 So.2d 212 (La.App.

1 Cir.), writ denied, 458 So.2d 123 (La.1984).

In Moroux, the defendant was retained to represent over one hundred

claimants after crop dusting chemicals drifted onto the grounds of a nearby school in

early 1995. In the fall of 1996, the defendant associated the plaintiff primarily to

work on the chemical drift case. Both parties agreed that the terms of the plaintiff’s

compensation were pursuant to an oral contract. Approximately two and one half

years after their association, the defendant told the plaintiff that he was forming a

partnership with another attorney and that the plaintiff’s draw would be decreased

under the new partnership. The plaintiff severed his relationship with the defendant

but continued to assist with the chemical drift case which was mediated and settled

a week later. The plaintiff filed an intervention in the suit seeking a portion of the

legal fees. The intervention was dismissed, and the plaintiff sued the defendant under

theories of breach of contract, joint venture, detrimental reliance, and unjust

enrichment.

In Moroux, partial summary judgments were granted on joint venture,

detrimental reliance, and unjust enrichment. Following the trial of the breach of

contract claim, the trial court found that an oral contract did exist, but the plaintiff

failed to prove that the contract was for a portion of the fees. Instead the court

15

awarded the plaintiff $5,000.00 for the work he performed on the case after severing

his employment with the defendant. The plaintiff appealed. As to the joint venture

issue, this court stated as follows:

[J]oint ventures are generally treated by our law as a
species of partnership, and governed by the law of
partnerships. [Cajun Electric Power Cooperative, Inc.,
452 So.2d 212, 214]. For example, there is a fiduciary duty
between members of a joint venture similar to that which
exists between partners in a partnership. Sutton v.
Fleming, 602 So.2d 228, 230 (La.App. 3rd Cir. 1992).

Louisiana Civil Code article 2801 defines a partnership as
follows:

A partnership is a juridical person, distinct from its
partners, created by a contract between two or more
persons to combine their efforts or resources in determined
proportions and to collaborate at mutual risk for their
common profit or commercial benefit.

The requisite criteria for the existence of a joint
venture (and a partnership) have been defined as follows:

(1) A contract between two or more persons;

(2) A juridical entity or person is established;

(3) Contribution by all parties of either efforts or resources;

(4) The contribution must be in determinate proportions;

(5) There must be joint effort;

(6) There must be a mutual risk vis-à-vis losses;

(7) There must be a sharing of profits.

Cajun Electric, 452 So.2d at 215.

Moroux, 943 So.2d at 1271.

After reviewing the law and evidence introduced in Moroux, a panel of

this court affirmed summary judgment on the joint venture issue, articulating as

follows:

16

Moroux testified via deposition that he incurred no risks
while working on the chemical drift case for Toce, as Toce
financed the case, paid all office overhead, provided
Moroux with secretarial staff, paid his legal malpractice
insurance, provided his computer, phone, and other
equipment, and paid all research expenses. Moroux further
admitted that the contingency fee contract was between
Toce and the plaintiffs and, although he felt that he
exercised some measure of control over the case, he agreed
that the ultimate authority rested with Toce. Accordingly,
we find that Moroux will be unable to prove that he and
Toce shared a mutual risk in the case vis-à-vis losses.
Thus, we affirm the trial court’s grant of a partial summary
judgment on this issue.

Id.

Similarly, in the present case, Garber testified that he never signed a loan

or wrote a check to help finance the expensive tobacco litigation or other contingency

fee cases. Rather, he billed his time hourly and was paid even if the contingency case

he worked on was lost and the partnership lost money on the case. Particularly in the

tobacco litigation, Garber submitted one invoice on September 9, 1994, prior to the

filing of the case, for twenty-four and a half hours of work on the case at $50.00 an

hour for a total payment of $1,225.00. Garber testified that he continued to answer

questions and brainstorm with the other attorneys on an occasional basis, but there

is no further evidence of hours spent, and no other hours billed.

Kay Watson, purportedly the only non-lawyer, staff person to work on

the tobacco litigation in the beginning, testified by deposition that Frank Elliot came

into the firm around 1995, and that she and Frank finally filed the tobacco suit in

1996. She further testified that Tom Gayle was hired in 1996, stating as follows:

A. I think originally, Mike [Garber] was going to be the
one that was actually going to do what Tom Gayle
ended up doing, as far as I remember it, that he was
going to be the person to kind of come in and kind
of, you know, put everything together and write
whatever briefs, write whatever, you know, motions
or whatever came about as a result. Mike was

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involved in a lot of the early conversations about,
you know, what the plan was and how to get it filed
and what we were going to do and the direct-action
statute and all that stuff originally.

Q. But then Mr. Gayle came in, and he took over the
Tobacco Litigation Group?

A. In ‘96.

Hence, the record indicates a serious shift in responsibilities for the

tobacco litigation after Garber’s 1994 invoice on that case. The record reveals that

the case did not settle for another six years. Also similar to the facts in Moroux,

Badon and Ranier paid Garber’s malpractice insurance and paid for the support staff

and the office expenses and financed the expensive contingency fee cases. Unlike the

facts in Moroux, Garber argues that he contributed to the expenses and overhead of

the firm because the firm generated invoices to the clients for $100.00 per hour for

Garber’s work on a case, and Garber was paid $50.00 an hour, per agreement, so that

he contributed one half of everything he billed to the firm, in addition to providing

books, furniture and even office space at various times.

However, unlike the plaintiff in Moroux, Garber maintained an entirely

separate law practice that paid him approximately $35,000.00 per year in addition to

the $48,000.00 to $52,000.00 per year that he made with Badon and Ranier.

Moreover, there was also a practice of Garber’s making draws against future billing,

such that one year he had to repay the firm $12,000.00 because his draws exceeded

his billing. It is also important to note that Garber did not share with Badon and

Ranier the fees that he collected on the cases that he handled through his separate law

practice. The profits and risks clearly were not shared with the partnership; indeed,

the risks were nonexistent.

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Detrimental Reliance

Garber asserts that the trial court erred in granting the defendants’

motion for summary judgment on his detrimental reliance claim. Again the court

relied on the Moroux case, where a panel of this court affirmed a summary judgment

on the issue of detrimental reliance, stating as follows:

The doctrine of detrimental reliance is found in
La.Civ.Code art. 1967, which provides:

Cause is the reason why a party obligates
himself.

A party may be obligated by a promise
when he knew or should have known that the
promise would induce the other party to rely
on it to his detriment and the other party was
reasonable in so relying. Recovery may be
limited to the expenses incurred or the
damages suffered as a result of the promisee’s
reliance on the promise. Reliance on a
gratuitous promise made without required
formalities is not reasonable.

Detrimental reliance, also known as equitable
estoppel, prevents a party from reneging or taking a
position contrary to his prior acts, admissions,
representations, or silence. To recover pursuant to
detrimental reliance, a plaintiff must prove (1) a prior
representation by conduct or word, (2) a justifiable
reliance, and (3) a detrimental change in one’s position
based on that reliance. As the supreme court stated:

Rather, the basis of detrimental reliance is
“the idea that a person should not harm
another person by making promises that he
will not keep.” Thus, the focus of analysis of
a detrimental reliance claim is not whether the
parties intended to perform, but, instead,
whether a representation was made in such a
manner that the promisor should have
expected the promisee to rely upon it, and
whether the promisee so relies to his
detriment.

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Moreover, the doctrine of detrimental reliance is not
favored by the law and all claims must be examined
carefully and strictly.

Moroux, 943 So.2d at 1272 (citations omitted).

In Moroux, the plaintiff indicated that he spent sixty to seventy percent

of his time on the chemical drift case as a result of the defendant’s promise. Moroux

stated that he relied to his detriment in the following ways: he would not have spent

the majority of his time on the case; he would have focused his attention on other

cases in order to increase his earnings; he would have pursued other work; he would

have sought out other job opportunities; and, he could have otherwise generated

approximately $250,000 to $300,000 in earnings per year. However, under

questioning, Moroux admitted that no other firm had guaranteed him the amount of

money he was making with Toce. In Moroux, we found a lack of evidence in

depositions and affidavits to show that Moroux could carry his burden at trial of

proving that he detrimentally changed his position based on his reliance that he would

share in the chemical drift case.

Similarly, in the present case, Garber testified in his deposition that if he

had not relied to his detriment, he would have spent his time building his own law

practice and legal reputation instead of building the practice of Badon and Ranier.

The trial court in this case, as in Moroux, found the detrimental change of position

lacking, and we agree with that analysis. In fact, in this case, the record reveals that

Garber was offered opportunities to change his position, but he declined to do so.

More specifically, Garber admitted that he was offered to share contingency fees on

certain cases more than once by Badon but declined because he did not want to sign

loans. He characterized these offers as less than equal and therefore unfair because

he was not offered a full one third on all business. We find this argument

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unpersuasive where the law provides us many options in fashioning partnerships to

suit our needs.

Garber stated in his deposition that as a result of promised riches, he had

improvidently invested in a Texas security service business that caused him to lose

$200,000.00 and that he probably would not have made the investment had there been

no promises. However, under Article 1967, we fail to see how Ranier, the main

source of the representations, could or should have known that his general statements

of a lucrative payoff, not specific promises of a particular amount, would induce

Garber to rely on such statements to the tune of what was actually a $400,000.00

investment, which Garber managed through damage control to bring down to a loss

of only half of the amount expended. Where no specific bonus amounts were ever

discussed, let alone reduced to writing, Garber may have suffered a detriment, but

it was not the result of a reasonable reliance for which there is recovery under Article

1967. Accordingly, we affirm the trial court’s dismissal of the claim of detrimental

reliance on the defendants’ summary judgment motion.

Garber includes at the end of his brief a plea for specific performance,

citing Morphy, 538 So.2d 569, for the proposition that an agreement does not fail

simply because the amount of remuneration is not agreed upon, and that the amount

for reasonable services is up to the trier of fact to determine. The trial court attempted

at various times during the last hearing to elicit argument on this issue, stating that

it was part of Garber’s argument in his opposition to the motion for summary

judgment. The transcript contains the following colloquy:

The Court:

Tell me about the specific performance claim
that you are alleging or what was the basis of
that.

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Mr. Culpepper:

Well, the basis for the specific performance
claim would be that he performed. He did
work for which he was not compensated and,
if there is not a joint venture involved in this,
which we think that there is, then he should
be compensated for the work he did instead of
if he’s not going to share in the joint venture.
If there was some sort of other agreement,
well then he should be compensated, and
admittedly he did not turn in statements for all
of this. A lot of things he did he did not turn
in statements and did not get paid anything
for.

Mr. Culpepper did not even articulate what specific performance was

sought from the defendants except to state that Garber should be compensated,

without the benefit of statements, if there was “some sort of other agreement.” In his

opposition to the defendants’ motion for summary judgment, Garber cited Morphy,

as in his brief, and argued that he did more work on the tobacco case after the 1994

invoice, and after Tom Gayle took over the litigation in 1996. However, the only

evidence in the record to substantiate that argument is Garber’s affidavit. While the

paralegal, Kay Watson, testified by deposition that she was present for some of the

representations that there would be a large payoff for everyone in the firm to share if

the tobacco litigation was successful, she indicated that this was in the early nineties.

Ms. Watson did not discuss any work that Garber might have done on the case after

it was filed and after Tom Gayle was hired.

At the final hearing on the motion for summary judgment in August

2007, the trial court referenced the fact that there had been “some argument” on

specific performance but that it did nothing to strengthen Garber’s case. The trial

court did not reference it as a cause of action and thought the argument, as presented,

fell under the unjust enrichment cause of action. We note that, while Garber alleged

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breach of contract in his original petition in 2002, he apparently abandoned the cause

of action as his brief and insufficient arguments only addressed specific performance

under a heading called “Specific Performance,” and he provided no evidence on the

issue other than that discussed above. Garber did not argue the elements of a breach

of contract cause of action. Accordingly, the trial court dismissed the specific

performance issue at the hearing along with the unjust enrichment claim and did not

address it in its final judgment.

When a judgment is silent as to part of the relief requested, the judgment

is deemed to have denied that relief. Duhon v. Lafayette Consol. Gov’t., 05-657

(La.App. 3 Cir. 12/30/05), 918 So.2d 1114.

IV.

CONCLUSION

Based upon the foregoing, the trial court’s dismissal of all of Garber’s

claims against Badon and Ranier, including partnership, joint venture, detrimental

reliance, and unjust enrichment is hereby affirmed. The cost of this appeal is to be

borne by the plaintiff-appellant, Michael R. Garber.

AFFIRMED.

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