William H. Nungesser v. Michael B. Moreno

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-331 c/w 11-332

ARC INDUSTRIES, L.L.C.

VERSUS

WILLIAM H. NUNGESSER

Consolidated with

WILLIAM NUNGESSER

VERSUS

MICHAEL B. MORENO, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2006-3028 C/W C-2008-3100
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Jimmie C. Peters,
Judges.

AFFIRMED.
George Pivach II
Pivach, Pivach, Hufft, Thriffiley & Nolan, L.L.C.
P. O. Box 7125
Belle Chasse, LA 70037
(504) 394-1870
Counsel for Defendant/Appellant:
William H. Nungesser

Gary Jude Russo
Cade Aaron Evans
Rachel Chance
Jones, Walker, Waechter, Poitevent, Carrère, and Denègre, LLP
P. O. Drawer 3408
Lafayette, LA 70502-3408
(337) 262-9000
Counsel for Defendants/Appellees:
Dynamic Industries, Inc.
Emile Dumesnil
ARC Industries, L.L.C.
Michael B. Moreno

Timothy Thriffiley
Pivach, Pivach, Hufft, Thriffiley & Nolan, L.L.C.
P. O. Box 7125
Belle Chasse, LA 70037
(504) 394-1870
Counsel for Defendant/Appellant:
William H. Nungesser

DECUIR, Judge.

In these consolidated cases, William H. Nungesser (Nungesser), appeals a

judgment of the trial court granting the peremptory exception of no cause of action

filed by defendant, Emile Dumesnil (Dumesnil).

FACTS

This matter arises out of a disputed consulting agreement between Nungesser

and a new company, later designated as Arc Industries, LLC (Arc), whereby

Nungesser was to provide consulting services to assist with Arc’s fledgling offshore

living quarters business. Nungesser alleges that the contract was negotiated by

Dumesnil. However, the letter of intent is signed by Mike Moreno (Moreno) as

representative of the new company. Though an actual draft consulting agreement

exists, it is not signed by the parties.

On November 11, 2005, in response to a request for payment from Nungesser, a

bookkeeping employee of Arc mistakenly issued a payment to Nungesser. Nungesser

was notified and refused to return the payment insisting that he was owed additional

compensation under the consulting agreement. Consequently, on June 16, 2006, Arc

filed suit in the Fifteenth Judicial District Court seeking declaratory judgment stating

that no contract existed between the parties and demanding a return of the payment.

Nungesser answered and filed a reconventional demand against Arc.

On December 18, 2006, Nungesser filed suit in the Twenty-Fifth Judicial

District Court, naming Moreno, Dynamic Industries, Inc. (Dynamic), and Dumesnil as

defendants. Moreno, Dynamic, and Dumesnil intervened. Nungesser’s suit was

ultimately transferred to the Fifteenth Judicial District Court and consolidated with

Arc’s suit. During the process, Nungesser filed supplemental reconventional demands

against the defendants, including Dumesnil.

On December 22, 2009, Arc filed a motion for summary judgment on the

claims asserted by Nungesser. The trial court denied the motion.

On October 25, 2010, Dumesnil filed a peremptory exception of no cause of

action with respect to the consolidated suits. The trial court granted Dumesnil’s

exception dismissing Nungesser’s claims against Dumesnil with prejudice. Nungesser

lodged this appeal alleging the trial court erred in granting the exception and in

refusing to allow Nungesser to amend his pleadings to state a cause of action.

DISCUSSION

The issue on appeal is whether Nungesser’s petition and reconventional

demands state a cause of action against Dumesnil, in his individual capacity.

In Ramey v. DeCaire, 03-1299, pp. 7-8 (La. 3/19/04), 869 So.2d 114, 118-19,

the court discussed the peremptory exception of no cause of action:

A cause of action, when used in the context of the peremptory
exception, is defined as the operative facts that give rise to the plaintiff’s
right to judicially assert the action against the defendant. Everything on
Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238
(La.1993). The function of the peremptory exception of no cause of
action is to test the legal sufficiency of the petition, which is done by
determining whether the law affords a remedy on the facts alleged in the
pleading. Id. at 1235. No evidence may be introduced to support or
controvert an exception of no cause of action. La. C.C.P. art. 931.
Consequently, the court reviews the petition and accepts well-pleaded
allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections,
00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels
Subaru, 616 So.2d at 1235. The issue at the trial of the exception is
whether, on the face of the petition, the plaintiff is legally entitled to the
relief sought. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d
127, 131.
Louisiana has chosen a system of fact pleading. La. C.C.P. art.
854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not
necessary for a plaintiff to plead the theory of his case in the petition.
Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). However, the mere
conclusions of the plaintiff unsupported by facts does not set forth a
cause of action. Montalvo at p. 6, 637 So.2d at 131.
The burden of demonstrating that the petition states no cause of
action is upon the mover. City of New Orleans v. Board of Com’rs of
Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In
reviewing the judgment of the district court relating to an exception of no
cause of action, appellate courts should conduct a de novo review
because the exception raises a question of law and the lower court’s
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decision is based solely on the sufficiency of the petition. Fink v. Bryant,
01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans at
p. 28, 640 So.2d at 253. The pertinent question is whether, in the light
most favorable to plaintiff and with every doubt resolved in plaintiff’s
behalf, the petition states any valid cause of action for relief. City of New
Orleans at p. 29, 640 So.2d at 253.
We have reviewed Nungesser’s pleadings, and, accepting all of the allegations

as true, we find that Nungesser has failed to allege facts sufficient to state a cause of

action against Dumesnil in his individual capacity.

Nungesser argues that his petition states a cause of action for conspiracy based

on his allegations that Moreno, Dumesnil, and Dynamic conspired to divert business

away from Arc and to Dynamic to avoid paying Nungesser’s commission.

Our colleagues in the fourth circuit recently discussed the cause of action for

conspiracy in Crutcher-Tufts Resources, Inc. v. Tufts, 2009-1572, p. 7 (La.App. 4 Cir.

4/28/10), 38 So.3d 987, 991:

Conspiracy by itself is not an actionable claim under Louisiana
law. Ross v. Conoco, Inc., 2002-0299 (La.10/15/02), 828 So.2d 546.
Instead, it is the “tort which the conspirators agreed to perpetrate and
which they actually commit in whole or in part” that constitutes the
actionable elements of a claim. Ross, 02-2009 at pp. 7-8, 828 So.2d at
552.
La. C.C. art. 2324 provides: “He who conspires with another
person to commit an intentional or willful act is answerable, in solido,
with that person, for the damage caused by such act.” In order to recover
under a conspiracy theory of liability, a plaintiff must prove that an
agreement existed to commit an illegal or tortious act; the act was
actually committed and resulted in plaintiff’s injury; and there was an
agreement as to the intended outcome or result. Butz v. Lynch, 97-2166
(La.App. 1 Cir. 4/8/98), 710 So.2d 1171. Similarly, Thomas v. North 40
Land Development, Inc., 04-0610 (La.App. 4 Cir. 1/26/05), 894 So.2d
1160, held: “To establish a conspiracy, a plaintiff is required to provide
evidence of the requisite agreement between the parties . . . stated
otherwise, the plaintiff is required to establish a meeting of the minds or
collusion between the parties for the purpose of committing
wrongdoing.”
Nungesser’s pleadings do not contain even the threshold allegation that

Dumesnil entered into any agreement to commit an intentional tort. There were no

allegations that an illegal or tortious act was committed that then resulted in the

plaintiffs’ alleged injury, or that there was any agreement as to the intended outcome

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or result. As such, we find that Nungesser failed to state a cause of action for

conspiracy and we hold that the trial court did not err in granting the exception of no

cause of action.

Nungesser also argues that his pleadings state a cause of action for breach of

contract against Dumesnil. We disagree. Other than the allegation that Dumesnil

negotiated the alleged consulting agreement on behalf of Arc, there is no allegation

that Dumesnil was involved with the contract at all. We find no allegations that

would support a cause of action for breach of contract against Dumesnil in his

individual capacity.

Nungesser next asserts that his pleadings state a cause of action against

Dumesnil for unjust enrichment. Nungesser’s pleadings merely allege in a conclusory

fashion that the defendants collectively were unjustly enriched. This is insufficient to

support a cause of action against Dumesnil in his individual capacity.

Finally, Nungesser argues the trial court erred in refusing to allow him to

amend his pleadings to state a cause of action. Absent a showing that the trial court

committed manifest error or abused its discretion, in refusing to allow an amendment,

its decision will not be disturbed on appeal. Eagle Pipe and Supply, Inc. v. Amerada

Hess Corp., 09-0298 (La.App. 4 Cir. 2/10/10), 47 So.3d 428, writs granted, 10-2267,

10-2272, 10-2275, 10-2279, 10-2289 (La. 2/4/11), 56 So.3d 979, 981, 982. We find

no such error in this case.

DECREE

For the foregoing reasons, the judgment of the trial court in these consolidated

cases is affirmed. All costs of these proceedings are taxed to appellant, William H.

Nungesser.

AFFIRMED.

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