Carl Moss v. Lowe's Home Centers, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 16-630

CARL MOSS

VERSUS

LOWE’S HOME CENTERS, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2016-1
HONORABLE SHARON D. WILSON, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and D. Kent Savoie,
Judges.

AFFIRMED.

D. Scott Rainwater
Jamie R. Pounders
Taylor, Wellons, Politz & Duhe
8550 United Plaza Blvd, Suite 101
Baton Rouge, LA 70809
(225) 387-9888
COUNSEL FOR DEFENDANT/APPELLEE:
Lowe’s Home Centers, Inc.

Carl Moss
In Proper Person
3021 Deaton St.
Lake Charles, LA 70601
(337) 496-9176

EZELL, Judge.

Carl Moss appeals a trial court judgment granting an exception of no cause

of action filed by Lowe‘s Home Centers, Inc. (Lowe‘s) and dismissing his case.

For the following reasons, we affirm the judgment of the trial court.

FACTS

Based on the facts in Mr. Moss‘s petition, he received a Lowe‘s merchandise

credit card on December 14, 2015, from an individual who owed him money. The

remaining balance on the card was $451.58. He went into the Lowe‘s store located

in Lake Charles, Louisiana and purchased a drink with the card to check the

balance at 9:51 a.m. The receipt showed that the balance on the card was $451.58

before the purchase. After the purchase, the receipt indicated a balance of $449.13.

Around 6:00 p.m. that same day, Mr. Moss went to Lowe‘s to use the card

and discovered that the card was depleted to a zero balance. The next morning a

Lowe‘s employee explained to Mr. Moss that someone had gone online at 10:05

a.m. the previous day and made an online purchase with the card. Lowe‘s believes

it was the individual who sold Mr. Moss the card because the individual picked up

the merchandise ordered online in Crowley, Louisiana.

Lowe‘s declined to refund the card in the amount that was used for the

online purchase. On January 12, 2016, Mr. Moss filed a petition for damages

against Lowe‘s. Along with its answer and affirmative defense, Lowe‘s filed a

peremptory exception of no cause of action. After a hearing on the exception on

March 21, 2016, the trial court granted Lowe‘s exception of no cause of action and

dismissed Mr. Moss‘s suit against Lowe‘s. Mr. Moss then filed the present appeal.

DISCUSSION

Mr. Moss argues that he has stated a cause of action against Lowe‘s because

Lowe‘s created a ―loophole‖ by allowing the merchandise credit card to be used

online to make a purchase and then allowing the individual to pick up the

merchandise at a store without presentation of the card. Mr. Moss further argues

that Lowe‘s had a fiduciary duty to protect the funds available on the card so that

the funds could not be stolen by a third party.

In McCarthy v. Evolution Petroleum Corp., 14-2607, p. 7 (La. 10/14/15),

180 So.3d 252, 257, the supreme court reiterated the standards for determining

whether the law allows a particular cause of action as it previously set forth in

Scheffler v. Adams and Reese, LLP, 06-1774, pp. 4-5 (La. 2/22/07), 950 So.2d 641,

646-47 (citations omitted), as follows:

As used in the context of the peremptory exception,
a ―cause of action‖ refers to the operative facts which
give rise to the plaintiff‘s right to judicially assert the
action against the defendant. The purpose of the
peremptory exception of no cause of action is to test the
legal sufficiency of the petition by determining whether
the law affords a remedy on the facts alleged in the
petition. No evidence may be introduced to support or
controvert the exception of no cause of action. LSA–
C.C.P. art. 931. The exception is triable on the face of the
pleadings, and, for purposes of resolving the issues raised
by the exception, the well-pleaded facts in the petition
must be accepted as true. 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.

Louisiana retains a system of fact pleading, and
mere conclusions of the plaintiff unsupported by facts
will not set forth a cause or right of action.

The burden of proving that no cause of action exists is on the party who filed

the exception. Id. Our review of the trial court‘s determination of whether a cause

of action exists is de novo. Id. In reviewing the trial court‘s decision regarding an

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exception of no cause of action, this court must determine whether a valid cause of

action exists in a light most favorable to the plaintiff and with every doubt resolved

in favor of the plaintiff. Id.

Mr. Moss relies on the language on the back of the card which states that

―[y]ou may use it at any Lowe‘s store by simply giving it to the cashier for

payment when making your purchase.‖ By using the word ―may,‖ Lowe‘s did not

limit the card‘s use to the store. See La.R.S. 1:3. This language simply means that

one must present the card when shopping at the store. There is no language on the

card which prevents a person from shopping online. The card further provides that

―[t]his Merchandise Credit cannot be replaced if lost or stolen.‖ As issuer of the

card, Lowe‘s has the authority to set its own terms subject to La.R.S. 51:1423

(requirements involving expiration dates and service fees), including the fact that

the card can be used for online purchases.

Mr. Moss also claims that Lowe‘s owes him a fiduciary duty because it has a

financial relationship with him by holding money for him. We first observe that

Mr. Moss has not cited any legal authority which establishes that Lowe‘s owed

him a fiduciary duty, or any kind of duty, to prevent the depletion of the funds on

the merchandise credit card by a third party.

There must be a fiduciary relationship between the parties in order for a

fiduciary duty to exist. Scheffler, 950 So.2d 641.

One is said to act in a fiduciary capacity ―when the business which he
transacts, or the money or property which he handles, is not his own
or for his own benefit, but for the benefit of another person, as to
whom he stands in a relation implying and necessitating great
confidence and trust on the one part and a high degree of good faith
on the other.‖

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Id. at 647 (quoting State v. Hagerty, 251 La. 477, 493, 205 So.2d 369, 374-375

(1967)). ―The defining characteristic of a fiduciary relationship, therefore, is the

special relationship of confidence or trust imposed by one in another who

undertakes to act primarily for the benefit of the principal in a particular

endeavor.‖ Id. at 648.

In the present case, there was no special relationship between Mr. Moss and

Lowe‘s. Lowe‘s undertook no obligation whatsoever to act on Mr. Moss‘s behalf.

Lowe‘s owes no fiduciary duty to Mr. Moss.

Mr. Moss also argues that the trial court erred in not allowing him to amend

his petition.

Louisiana Code of Civil Procedure Article 934 provides:

When the grounds of the objection pleaded by the peremptory
exception may be removed by amendment of the petition, the
judgment sustaining the exception shall order such amendment within
the delay allowed by the court. If the grounds of the objection raised
through the exception cannot be so removed, or if the plaintiff fails to
comply with the order to amend, the action, claim, demand, issue, or
theory shall be dismissed.

A plaintiff‘s right to amend the petition is not absolute. Deal v. Haney, 14-

1232 (La.App. 3 Cir. 11/25/14), 158 So.3d 35 (citing Whitney Nat. Bank v. Jeffers,

573 So.2d 1262 (La.App. 4 Cir. 1991). It is within a trial court‘s discretion

whether to allow an amendment of the petition. Id. ―[L]eave to amend is not

required when it would constitute ‗a vain and useless act.‘‖ Id. at 39 (quoting

Broussard v. F.A. Richard &Assocs., Inc., 99-10, p. 7 (La.App. 3 Cir. 5/5/99), 740

So.2d 156, 160), writ denied, 99-1048 (La. 6/4/99), 744 So.2d 625.

There are no other facts or theories of law which would permit Mr. Moss

recovery for the theft of the funds by a third party. Allowing amendment of the

petition would be a vain and useless act. Therefore, the trial court was correct in

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granting Lowe‘s exception of no cause of action and dismissing Mr. Moss‘s claims

against it without permitting Mr. Moss to amend his petition.

For these reasons, the judgment of the trial court is affirmed in all respects.

Costs of this appeal are assessed to Carl Moss.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal, Rule 2–16.3.

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