Simone B. Guillory v. Samuel S. Broussard, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-931

SIMONE B. GUILLORY, ET AL.

VERSUS

SAMUEL S. BROUSSARD, JR., ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 119,923, DIVISION F
HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and
Elizabeth A. Pickett, Judges.

AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS.

Natalie Bernard Broussard
Attorney at Law
203 W. Main St., Suite 200
New Iberia, LA 70560
(337) 365-9000
COUNSEL FOR PLAINTIFF-APPELLANT:
Simone B. Guillory

Philip A. Franco
Raymon P. Ward
Lauren Lopresto Tafaro
Diana Cole Surprenant
Adams and Reese LLP
701 Poydras Street, Suite 4500
New Orleans, LA 70139
(504) 581-3234
COUNSEL FOR PLAINTIFF-APPELLANT:
Simone B. Guillory

Steven G. Durio
Travis J. Broussard
Durio, McGoffin, Stagg & Ackermann
P. O. Box 51308
Lafayette, LA 70505-1308
(337) 233-0300
COUNSEL FOR DEFENDANTS-APPELLANTS:
Samuel S. Broussard, Jr.
Sam Broussard Trucking Co., Inc.

PICKETT, Judge.

Samuel S. Broussard, Jr. and Sam Broussard Trucking Co., Inc. appeal the

trial court’s judgment granting Simone Guillory’s Motion for Summary Judgment

and awarding Simone Guillory $2,659,482.91 in damages pursuant to an opinion

rendered by this court in Guillory v. Broussard, 15-888 (La.App. 3 Cir. 5/18/16),

194 So.3d 764, writ denied, 16-1707 (La. 11/29/16), 210 So.3d 806. Simone

Guillory has also appealed the trial court’s judgment, seeking restoration of 171.5

shares of stock of Sam Broussard Trucking Co., Inc., a specific finding that Samuel

S. Broussard, Jr. is solidarily liable with Sam Broussard Trucking Co., Inc., and

judicial interest.

FACTS

This court previously outlined the facts of this case in Guillory v. Broussard,

15-888 (La.App. 3 Cir. 5/18/16), 194 So.3d 764, writs denied, 16-1045 (La.

9/16/16), 206 So.3d 884, and 16-1707 (La. 11/29/16), 210 So.3d 806. Sam

Broussard, Jr., and his three sisters, Simone Guillory, Lamar Lopresto, and

Michelle Cart, each owned 25% of Sam Broussard Trucking Co., Inc. (SBT)

following the death of their parents. Mr. Broussard served as president of SBT. At

Mr. Broussard’s behest, the three sisters agreed to make Mr. Broussard the

majority owner of SBT in exchange for certain concessions, including an equal

share of ownership in immovable property owned by SBT and a permanent seat on

the board of directors for each of the sisters. Mr. Broussard presented his sisters

with a Stock Redemption Agreement (SRA), in which each sister agreed to transfer

171.5 shares of SRT stock back to the company in exchange for $200,000.00. The

agreement was executed in 2003. Alleging that Mr. Broussard reneged on the

promises he made to secure their agreement to transfer the stock by using his

increased voting power to remove them from the board of directors and failing to

equally share income generated by the ownership of the immovable property, Ms.

Guillory and Ms. Lopresto filed suit against Mr. Broussard and SBT on December

21, 2011. Before trial, Ms. Lopresto withdrew from the suit, but Ms. Guillory’s

claims proceeded.

Following a trial, a jury found that Ms. Guillory’s error vitiated her consent

to the SRA. The jury failed to award any remedy to Ms. Guillory as a result of this

finding. The jury also found that after Ms. Guillory filed this suit, Mr. Broussard

failed to distribute sufficient profits for Ms. Guillory to pay increased taxes

brought on by a change in the tax status of SBT, as he had promised. The jury

found that Mr. Broussard violated the Louisiana Unfair Trade Practices Act

(LUTPA) by failing to keep this agreement with Ms. Guillory and awarded Ms.

Guillory $69,084.00 for unfair trade practices. The trial court rendered judgment in

conformity with the jury’s findings, and also awarded attorney fees to Ms. Guillory

pursuant to La.R.S. 51:1409(A). All parties appealed this judgment.

On appeal, this court found that LUTPA did not apply to Ms. Guillory’s

claim, but general contract principles did. Because the trial court failed to instruct

the jury on general contract law, this court analyzed Ms. Guillory’s petition for

damages and the evidence presented at trial, and affirmed the award of $69,084.00

for Mr. Broussard’s “refus[al] to make an annual corporate distribution to [Ms.

Guillory] solely for his personal benefit” to cover her tax obligations. Guillory,

194 So.3d at 781. However, the award of attorney fees was reversed. Id.

With regard to the SRA, this court found no manifest error in the jury’s

finding that Ms. Guillory’s agreement to redeem her shares of SBT stock “was

vitiated for lack of consent resulting from excusable error.” Id. at 782. This court

did find, though, that the jury erred in failing to provide a remedy to Ms. Guillory.

Id. The only remedy presented to the jury as an option was rescission of the
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contract. This court found that the other remedy available to Ms. Guillory is found

in La.Civ.Code art. 1952, which states:

A party who obtains rescission on grounds of his own error is
liable for the loss thereby sustained by the other party unless the latter
knew or should have known of the error.

The court may refuse rescission when the effective protection
of the other party’s interest requires that the contract be upheld. In
that case, a reasonable compensation for the loss he has sustained may
be granted to the party to whom rescission is refused.

Reviewing the evidence presented to the jury, this court found that Mr. Brossard

“failed to offer any evidence to prove how or in what manner rescission of the

Stock Redemption Agreement will result in his interests being unprotected. Thus,

reasonable compensation as a remedy in this case is not an available option.”

Guillory, 194 So.3d at 783. This court remanded the case to the trial court, stating:

The record supports the reasonableness of the jury’s finding
Plaintiff’s error was excusable, considering her age, her lack of
business experience, and that she is not a trained professional. The
record also supports the jury’s finding that Defendant knew of
Plaintiff’s errors regarding the Stock Redemption Agreement and we
cannot say it was manifestly erroneous in so finding. We therefore
hold that the Stock Redemption Agreement between Simone B.
Guillory and Sam Broussard Trucking Company, Inc. dated July 31,
2003, is hereby rescinded and declared null and void and of no legal
effect. . . . In light of these findings, Plaintiff is restored to her
ownership interest in Sam Broussard Trucking Company, Inc. as it
existed prior to the Stock Redemption Agreement and to her status as
a Board member prior to her improper removal in 2011. We remand
the case for further proceedings to determine damages consistent with
this opinion.

Guillory, 194 So.3d at 784.

On remand, Ms. Guillory filed a Motion for Summary Judgment Pursuant to

Remand. She sought return of 171.5 shares of stock redeemed in 2003,

$2,625,282.91 in distributions of profit since 2003, of which she argued Mr.

Broussard was liable solidarily for $2,190,013.09, and fees earned as a board

member since she was improperly removed from the board of directors of SBT in

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2011. To support her claim, Ms. Guillory executed an affidavit and attached the

tax returns of SBT and her own tax documents related to distributions from SBT.

SBT and Mr. Broussard responded by arguing that a return of 171.5 shares

to Ms. Guillory would result in her owning 43.8% of SBT shares, on equal footing

with Mr. Broussard. SBT and Mr. Broussard argued that the court should fashion a

remedy whereby Ms. Guillory would receive the 25% of the company she owned

before the SRA was executed. Alleging that this created a genuine issue of

material fact, they argued summary judgment was not appropriate. Mr. Broussard

also argued that he should not be held liable personally because he was not a party

to the SRA personally. SBT and Mr. Broussard also argued that this court’s

opinion did not order SBT to pay Ms. Guillory for board of director meetings that

she did not attend.

Following a hearing, the trial court ruled in favor of Ms. Guillory and

awarded her a judgment against Mr. Broussard and SBT in the amount of

$2,625,282.91. The trial court also awarded Ms. Guillory judgment against Mr.

Broussard and SBT in the amount of $34,200.00 for the loss of fees as a member

of the board of directors of SBT since 2011. Both Ms. Guillory and Mr. Broussard

and SBT have appealed this judgment.

ASSIGNMENTS OF ERROR

Mr. Broussard and SBT filed a suspensive appeal and asserted four

assignments of error:

1. The trial court erred in issuing a judgment contrary to this Court’s
prior controlling opinion recognizing each of the “four siblings [had]
equal ownership,” or 25% each, of SBT prior to the SRA and
restoring plaintiff “to her ownership interest in Sam Broussard
Trucking Co., Inc. as it existed prior to the Stock Redemption
Agreement.”

2. The trial court erred in issuing a judgment contrary to La.Civ.Code
art. 2033’s mandate to restore the parties to the “situation that existed
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before” the SRA without unjustly enriching either party as
La.Civ.Code art. 1952 requires, instead granting plaintiff a vastly-
increased, unjust windfall of 43.8% of SBT’s stock which she never
held at any time, even prior to the SRA.

3. The trial court erred in finding plaintiff has a right of action against
Broussard personally for unpaid distributions when her claim lies only
against SBT as the party which issued the distributions, and res
judicata bars derivative rights.

4. The trial court erred in granting director’s fees on plaintiff’s claim for
director’s fees under the Louisiana Unfair Trade Practices Act, on
which the jury refused a director’s fees award on a claim this court
had already dismissed.

Ms. Guillory filed a devolutive appeal, and asserts three assignments of

error:

1. In its reasons for judgment, the trial court correctly held that Ms.
Guillory is entitled to receive the 171.5 shares of SBT stock that were
redeemed through the now rescinded Stock Redemption Agreement.
But the trial court erroneously omitted this award from the judgment
itself.

2. The trial court correctly rendered judgment in Ms. Guillory’s favor
against Mr. Broussard and SBT for $2,625,282.91, representing
distributions she should have received on the 171.5 shares, plus
$34,200.00 for loss of fees Ms. Guillory would have been paid as a
board member for SBT. But the trial court’s judgment is in error
because it fails to state that Mr. Broussard is solidarily liable for
these sums.

3. The trial court erred in failing to make any award of legal interest in
its judgment. Ms. Guillory is entitled to legal interest at least from
the date of judicial demand on the amounts owed to her under the
judgment.

DISCUSSION

This court explained the appropriate standard for appellate review of a

motion for summary judgment in Ravey v. Rockworks, LLC, 12-1305, pp. 2-3

(La.App. 3 Cir. 4/10/13), 111 So.3d 1187, 1189-90:

When an appellate court reviews a district court’s judgment on
a motion for summary judgment, it applies the de novo standard of
review, “using the same criteria that govern the trial court’s
consideration of whether summary judgment is appropriate, i.e.,
whether there is a genuine issue of material fact and whether the
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mover is entitled to judgment as a matter of law.” Supreme Serv. &
Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958
So.2d 634, 638.

A motion for summary judgment shall be granted when “the
pleadings, depositions, answers to interrogatories, and admission on
file, together with the affidavits, if any, show that there is no genuine
issue of material fact, and that the mover is entitled to judgment as a
matter of law.” La.Code Civ.P. art. 966. “[I]f reasonable persons
could only reach one conclusion, then there is no need for trial on that
issue and summary judgment is appropriate.” Hines v. Garrett, 04-
806, p. 1 (La.6/25/04), 876 So.2d 764, 765-66 (quoting Smith v. Our
Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d
730, 751). A fact is “material” when “its existence or nonexistence
may be essential to plaintiff’s cause of action under the applicable
theory of recovery.” Smith, 639 So.2d at 751.

Effect of Nullity of the Stock Redemption Agreement

In their first and second assignments of error, Mr. Broussard and SBT argue

that the trial court erred in allowing Ms. Guillory to recover the proceeds from

171.5 shares of stock, which represents 43.8% of the outstanding shares of SBT

stock, rather than the 25% share she owned prior to the execution of the SRA. In

her first assignment of error, Ms. Guillory argues the trial court erred by not

particularizing in the judgment that she was entitled to 171.5 shares of stock.

At the time the SRA was executed, each of the four Broussard siblings

owned 180 shares of SBT stock. A testamentary trust, in which each sibling had a

one-quarter interest, owned 80 shares. Thus, there were 800 shares of stock

outstanding, and each sibling owned 180 shares individually and 25% interest in

the 80 shares of the trust. The terms of the SRA stipulated SBT would redeem

171.5 shares of stock from each of the sisters and that Ms. Guillory, Ms. Lopresto,

and Ms. Cart would be paid $200,000.00 each. After the redemption of these

514.5 shares of stock, there remained 285.5 shares of SBT stock outstanding.

When the siblings’ parents died, each sibling became owner of 20 of the 80 shares

of stock owned by the testamentary trust. The result of these two transactions was

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that Mr. Broussard owned 200 shares of stock, Ms. Guillory owned 28.5 shares of

stock, Ms. Lopresto owned 28.5 shares of stock, and Ms. Cart owned 28.5 shares

of stock. By percentage, Mr. Broussard became owner of 70% of the shares, and

each of the sisters was owner of 10% of the shares.

In Guillory, 194 So.3d 764, this court nullified the SRA as it relates to Ms.

Guillory for lack of consent because of error. We “restored [Ms. Guillory] to her

ownership interest in Sam Broussard Trucking Co., Inc. as it existed prior to the

Stock Redemption Agreement[.]” Id. at 784. On remand, the trial court calculated

the damages awarded to Ms. Guillory based on the distributions due to a

shareholder who owned 200 shares of stock (28.5 shares she previously owned

plus 171.5 shares restored to her), or 43.8% of the now 457 outstanding shares

(285.5 shares previously outstanding plus 171.5 shares restored to Ms. Guillory),

less the distributions she had already received as an owner of 28.5 shares of stock

when 285.5 shares of stock were outstanding, or 10%.

Mr. Broussard and SBT argue that the trial court should have only restored

Ms. Guillory to a 25% ownership interest in SBT, which is the stake she held in the

company at the time of the SRA. Mr. Broussard and SBT argue that the use of the

phrase “ownership interest in Sam Broussard Trucking, Inc. as it existed prior to

the Stock Redemption Agreement” means the percentage of stock Ms. Guillory

owned prior to the SRA rather than the number of shares she owned. We disagree.

This court unambiguously held that the SRA was “rescinded and declared

null and void and of no legal effect.” Id. at 784. The terms of the SRA were that

Ms. Guillory would redeem 171.5 shares in exchange for $200,000.00. By

rescinding the SRA and declaring it null, this court held that the redemption of Ms.

Guillory’s 171.5 shares by SBT never occurred. As a result of the rescission, the

two siblings who did not redeem their stock, Mr. Broussard and Ms. Guillory, are
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restored to their position of having an equal in SBT, as they did before the

execution of the SRA. Thus, the trial court was correct in its written reasons for

ruling when it stated:

Since the Third Circuit rescinded the 2003 Stock Redemption
Agreement and declared it null and void and of no legal effect, the
Court finds that there is no genuine issue of material fact that with the
rescission of the 2003 Stock Redemption Agreement as to Simone
Guillory, Simone Guillory is restored to her ownership of 171.5 shares
of stock. Further, with the restoration of the 171.5 shares of stock,
Simone Guillory is entitled to all the distributions by the company
since 2003 that relate to these shares of stock.

While we find that the trial court reached the correct conclusion, we agree

with Ms. Guillory that the trial court erred by failing to include specific language

restoring her to 171.5 shares of stock in SBT and amend the judgment to explicitly

require SBT to issue 171.5 shares of stock to Ms. Guillory.

Mr. Broussard and SBT also argue that the trial court’s judgment does not

comport with the requirements of La.Civ.Code art. 2033, which states:

An absolutely null contract, or a relatively null contract that has
been declared null by the court, is deemed never to have existed. The
parties must be restored to the situation that existed before the
contract was made. If it is impossible or impracticable to make
restoration in kind, it may be made through an award of damages.

Nevertheless, a performance rendered under a contract that is
absolutely null because its object or its cause is illicit or immoral may
not be recovered by a party who knew or should have known of the
defect that makes the contract null. The performance may be
recovered, however, when that party invokes the nullity to withdraw
from the contract before its purpose is achieved and also in
exceptional situations when, in the discretion of the court, that
recovery would further the interest of justice.

Absolute nullity may be raised as a defense even by a party
who, at the time the contract was made, knew or should have known
of the defect that makes the contract null.

In fact, the first paragraph of this article supports the conclusion we reach here that

the parties be restored to the situation that existed before the SRA was executed.

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Mr. Broussard and SBT’s argument that Comment (b) to this article supports their

position is misplaced. Comment (b) merely restates the 1870 version of Civil

Code article 2506, and supports the award of the distributions on the 171.5 shares

to Ms. Guillory: “The restoration of the parties to the situation that existed before

the contract that is called for by this Article includes restoration of fruits and

revenues, as any unjust enrichment of the parties must be prevented.” La.Civ.Code

art. 2033, Comment (c). We find that Mr. Broussard, not Ms. Guillory, would be

unjustly enriched by receiving a larger share of the distributions from SBT than he

is entitled to under his interpretation of this court’s previous ruling.

Mr. Broussard and SBT also argue that the trial court’s judgment violates

La.Civ.Code art. 2506, which states:

A buyer who avails himself of the warranty against eviction
may recover from the seller the price he paid, the value of any fruits
he had to return to the third person who evicted him, and also other
damages sustained because of the eviction with the exception of any
increase in value of the thing lost.

Mr. Broussard and SBT claim that the value of the property, presumably the shares

of SBT stock, increased. To support this allegation, Mr. Broussard and SBT point

to Mr. Broussard’s affidavit, which alleges that Ms. Lopresto and Ms. Cart will be

left with only 6.2% interest in SBT. We find no merit in the argument that

La.Civ.Code art. 2506 supports the claim of Mr. Broussard and SBT.

Finally, Mr. Broussard and SBT argue that La.Civ.Code art. 1952 does not

support the finding of the trial court. As previously discussed, this court has

already considered whether a remedy is available under La.Civ.Code art 1952.

Citing the jury’s finding that SBT knew or should have known of the error which

vitiated Ms. Guillory consent to the contract, this court found that the remedy of

reasonable compensation pursuant to Article 1952 was inapplicable to this case,

and ordered rescission. Guillory, 194 So.3d at 784.
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We affirm the trial court’s calculation of Ms. Guillory’s recovery based on

the return to Ms. Guillory from SBT 171.5 shares of SBT stock, but amend the

judgment to specify that SBT must reissue to Ms. Guillory 171.5 shares of stock.

Amount awarded

The trial court’s judgment awards Ms. Guillory $2,625,282.91. Neither

party raises the amount awarded as an issue, but in performing a de novo review

we have calculated the amounts based on the information in Ms. Guillory’s

affidavit and supporting documents. There are inconsistencies in the data provided

in the affidavit and in the supporting documents, to wit:

1. SBT’s 2006 tax return says there were $600,000.00 in distributions, but Ms.

Guillory only received $10,000.00, and she states in her affidavit that

distributions should have been $100,000.00. We have concluded, based on

the uncontroverted evidence, that the correct amount is $100,000.00.

2. Ms. Guillory’s affidavit says there were a total of $1,017,655.00 in

distributions in 2008, but SBT’s 2008 tax return says $1,017,657.00 was

distributed. We find the amount from the tax return is correct.

3. Ms. Guillory’s 2016 affidavit says there were $1,000,000.00 in distributions,

but there is no supporting documentation. This amount is based on Ms.

Guillory receiving $100,000.00, for which there is supporting evidence. We

conclude Ms. Guillory’s uncontroverted affidavit is correct.

Thus, we find that the total distributions from SBT to its shareholders from

2004 to 2016 is $8,358,826.00. This is $2.00 different from the calculation used

by Ms. Guillory and adopted by the trial court. The amount of distributions paid to

Ms. Guillory plus the $200,000.00 from the SRA, as calculated by Ms. Guillory, is

$1,035,882.00. We have calculated this sum as $1,035,883.00. The difference is

in the 2008 distribution, which Ms. Guillory lists as $101,765.00, but her
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supporting documents (Schedule K-1) list as $101,766.00. These are admittedly

minor inconsistencies.

The more significant error is the manner in which Ms. Guillory calculated

the amount of the distributions she should have been paid. Ms. Guillory assumed

she should have been paid 43.8% of the total distributions, or $3,661,164.91.

However, she is actually entitled to 200/457ths of the distributions, or

43.7636761% of the distributions. Using the corrected amounts, and applying the

correct percentage, the actual amount to which Ms. Guillory is entitled to is

$2,622,246.54 ((0.437636761 X $8,358,826.00) - $1,035,833.00).

Samuel S. Broussard, Jr.’s Personal Liability

The trial court’s judgment states, in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED that the
Motion for Summary Judgment is granted.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
SIMONE GUILLORY is entitled to judgment against SAMUEL S.
BROUSSARD, JR. AND SAM BROUSSARD TRUCKING CO.,
INC. in the amount of TWO MILLION, SIX HUNDRED TWENTY-
FIVE THOUSAND TWO HUNDRED EIGHTY-TWO AND 91/100
($2,625,282.91) DOLLARS.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that SIMONE GUILLORY is entitled to judgment against Samuel S.
Broussard, Jr. and Sam Broussard Trucking Co., Inc. in the amount of
THIRTY-FOUR THOUSAND TWO HUNDRED AND NO/100
($34,200.00) DOLLARS representing the loss of fees as a Board
Member of Sam Broussard Trucking Company, Inc. since September
2011.

Costs are assessed to Defendant, Samuel S. Broussard, Jr.

In their third assignment of error, Mr. Broussard and SBT argue that Mr. Broussard

should not be held personally liable for the distributions made by SBT, a separate

corporation, as Ms. Guillory had previously filed a derivative action which was

dismissed, and therefore her claim for personal liability against Mr. Broussard is

barred by res judicata. In her second assignment of error, Ms. Guillory argues that
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the trial court erred in failing to hold specifically that Mr. Broussard is solidarily

liable for the damages awarded to her.

Ms. Guillory and Ms. Lopresto 1 did file a derivative action against Mr.

Broussard, Ms. Cart, the trustee of the family trust to whom Mr. Broussard had

transferred 18% of his SBT stock, and SBT on June 27, 2012, while this case was

pending. Ms. Guillory made claims that Mr. Broussard’s compensation was

excessive and that he violated LUTPA for failing to make distributions of profits.

The trial court granted an involuntary dismissal in favor of the defendants at the

close of Ms. Guillory’s case, finding that (1) she bore the burden of proving

excessive compensation and she failed to meet that burden, and (2) she failed to

introduce evidence that Mr. Broussard’s failure to distribute profits was an unfair

or deceptive act as required under LUTPA. This court affirmed the judgment of

the trial court in Guillory v. Broussard, 15-953 (La.App. 3 Cir. 5/4/16), 190 So.3d

486, writ denied, 16-1045 (La. 9/16/16).

Louisiana Revised Statutes 13:4231 states:

Except as otherwise provided by law, a valid and final
judgment is conclusive between the same parties, except on appeal or
other direct review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of action
existing at the time of final judgment arising out of the transaction
or occurrence that is the subject matter of the litigation are
extinguished and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of action
existing at the time of final judgment arising out of the transaction
or occurrence that is the subject matter of the litigation are
extinguished and the judgment bars a subsequent action on those
causes of action.

(3) A judgment in favor of either the plaintiff or the defendant is
conclusive, in any subsequent action between them, with respect to

1
Ms. Lopresto eventually withdrew as a plaintiff, but later intervened in the
suit as an indispensable party.
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any issue actually litigated and determined if its determination was
essential to that judgment.

Louisiana Revised Statutes 14:4232 provides for exceptions to the statutory

doctrine of res judicata, stating in pertinent part:

A. A judgment does not bar another action by the plaintiff:

(1) When exceptional circumstances justify relief from the res judicata
effect of the judgment;

(2) When the judgment dismissed the first action without prejudice; or,

(3) When the judgment reserved the right of the plaintiff to bring
another action.

The supreme court in Burguieres v. Pollingue, 02-1385, p. 8 (La. 2/25/03),

843 So.2d 1049, 1053, established that the following five elements must be

satisfied for a finding that a second action is precluded by res judicata:

(1) the judgment is valid; (2) the judgment is final; (3) the parties are
the same; (4) the cause or causes of action asserted in the second suit
existed at the time of final judgment in the first litigation; and (5) the
cause or causes of action asserted in the second suit arose out of the
transaction or occurrence that was the subject matter of the first
litigation.

At the time the derivative action was litigated, this suit, which included

claims against Mr. Broussard personally for conduct related to the SRA, was

pending. This court’s judgment which precipitated the remand of the case for a

determination of damages was pending at the time and was not a second or

subsequent action. Therefore, we find res judicata inapplicable to this case.

Ms. Guillory argues that Mr. Broussard should be held personally liable for

the portion of distributions due to her that were made instead to Mr. Broussard (or

the family trust to whom he transferred 18% of his shares of stock in 2012 and

2013), amounting to $2,190,013.09, under the theory of unjust enrichment. She

cites La.Civ.Code art. 2298, which states:

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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 supreme court has held, “The unjust enrichment remedy is ‘only applicable to

fill a gap in the law where no express remedy is provided.’ Mouton v. State, 525

So.2d 1136, 1142 (La.App. 1st Cir.1988), writ denied, 526 So.2d 1112 (La.1988).”

Walters v. MedSouth Record Mgmt., LLC, 10-351 (La. 6/4/10), 38 So. 3d 245, 246.

Ms. Guillory’s claim for recovery of distributions made by the corporate

defendant, SBT, from Mr. Broussard personally as the agent of the corporation

who authorized the distributions, is recognized by law, as this court recognized in

Guillory, 194 So.3d at 780-81:

Plaintiff sued Defendant Broussard individually and in his
capacities as President and Director of SBT alleging he is personally
liable to Plaintiff for intentional breach of his promise to pay
[distributions for increased taxes] and for breach of his fiduciary
duties to her. A shareholder does not generally have a right to sue
personally for losses to the corporation occasioned by an
Officer/Director’s breach of fiduciary duty. However, when the
Officer or Director’s breach of fiduciary duty causes a “direct loss to
the shareholder, but not to the corporation, ... the shareholder may
have a right to sue individually.” Thornton ex rel. Laneco Constr.
Systems, Inc. v. Lanehart, 97–2871, p. 6 (La.App. 1 Cir. 12/28/98),
723 So.2d 1127, 1131, writ denied, 99–0177 (La.3/19/99), 740 So.2d
115, citing Wilson v. H.J. Wilson Co., Inc., 430 So.2d 1227 (La.App.
1st Cir.), writ denied, 437 So.2d 1166 (1983). Moreover:

The fiduciary cannot take advantage of his position for
his personal benefit to the detriment of the corporation or
its shareholders. Olinde v. 400 Group, 95–1233 (La.App.
1st Cir.12/6/96), 686 So.2d 883, 885, writ denied, 97–
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0633 (La.5/9/97), 693 So.2d 767. The fiduciary is
responsible for proving that his actions were in good faith
and that he was guided by inherent fairness to the
corporation. Hirsch v. Cahn Elec. Co., Inc., 29,327
(La.App. 2nd Cir.5/9/97), 694 So.2d 636, 642, writ
denied, 97–1561 (La.10/3/97), 701 So.2d 200.

Id. See also in accord Lawly Brooke Burns Trust v. RKR., Inc., 96–
1231 (La.App. 1 Cir. 3/27/97), 691 So.2d 1349, and cases cited
therein.

We agree that Ms. Guillory has a claim against Mr. Broussard personally for

distributions by SBT that Mr. Broussard authorized on behalf of the corporation

pursuant to the SRA if she can show he failed to act in good faith. These claims

are not barred by res judicata. The theory of unjust enrichment is not available, as

there is a remedy available under the law for such a recovery. The record on

summary judgment does not determine whether Mr. Broussard’s actions in

determining the distribution payments to Ms. Guillory and himself as an agent of

SBT constituted a breach of his fiduciary duty of good faith. The trial court erred

to the extent that it granted summary judgment on the issue of Mr. Broussard’s

personal liability, and the case is remanded for a trial on the merits on the issue of

whether Mr. Broussard exercised his fiduciary responsibilities to SBT in bad faith

to the detriment of Ms. Guillory.

Award of Director’s Fees

In their fourth assignment of error, Mr. Broussard and SBT argue that this

court, in its previous opinion, dismissed Ms. Guillory’s LUTPA claims, which

included her claim for director’s fees. While this is correct, this court found Ms.

Guillory’s removal from the board of directors of SBT improper when analyzed

under general contract theory and also ordered Ms. Guillory reinstated to her

position as a member to the board of directors of SBT, finding her removal in

September 2011 improper. Guillory, 194 So.3d 764. We find the award of

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director’s fees since that time consistent with our ruling and affirm the trial court’s

judgment awarding $34,200.00.

Judicial Interest

In her third assignment of error, Ms. Guillory argues she should be awarded

judicial interest from the date of judicial demand on the amounts owed to her under

the judgment. Louisiana Code of Civil Procedure Article 1921 provides, “The

court shall award interest in the judgment as prayed for or as provided by law.”

Ms. Guillory prayed for judicial interest in her pleadings. Thus, she is entitled to

recover judicial interest.

Nevertheless, we cannot award judicial interest from the date of judicial

demand for the entire amount of the award. In the instant case, the date of judicial

demand is December 21, 2011, the date the instant action was initiated by the

petition of Ms. Guillory. For distributions made from 2004 through 2010, we find

judicial interest is due from the date of judicial demand. For distributions and

directors’ fees due after that date but before the judgment of the trial court, we find

that judicial interest cannot begin to accrue until those amounts became due. For

example, Ms. Guillory received $30,000.00 in distributions for 2011, but she

should have received $131,291.03. The excess of $101,291.03 became due on

December 31, 2011. The judicial interest on that amount begins accruing on

December 31, 2011. Likewise, in 2012, Ms. Guillory received $50,000.00 in

distributions for 2012, but should have received $218,818.38. The excess of

$168,818.38 became due on December 31, 2012. The judicial interest on that

amount begins accruing on December 31, 2012. For each successive year that Ms.

Guillory failed to receive in full the distributions to which she was entitled as an

owner of 200 shares of stock in SBT, Ms. Guillory is entitled to recover legal

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interest on the amounts awarded herein from the last date of the year in which

those distributions were payable.

CONCLUSION

The judgment of the trial court is amended to order SBT to reissue to Ms.

Guillory 171.5 shares of SBT stock. The judgment is amended to award damages

to Ms. Guillory in the amount of $2,622,246.54 for unpaid distributions and

$34,200.00 for director’s fees against SBT, with legal interest. The trial court is

ordered to calculate the appropriate legal interest. The judgment is reversed

insofar as it held Mr. Broussard personally liable, and the case is remanded for a

trial to determine the extent, if any, to which he can be held personally liable. In

all other respects, the judgment of the trial court is affirmed. Costs of this appeal

are assessed to Mr. Broussard and SBT.

AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS.

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