Kenneth Bourque v. Butch Bergeron

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-108

KENNETH BOURQUE

VERSUS

BUTCH BERGERON

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20165619
HONORABLE DAVID M. SMITH, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Billy Howard Ezell, D. Kent Savoie, and J. Larry Vidrine*,
Judges.

REVERSED AND REMANDED.

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*Honorable J. Larry Vidrine participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

Russell Bryant Kahn
D. Reardon Stanford
Hoyt & Stanford
315 S. College Road, #165
Lafayette, LA 70503
(337) 234-1012
COUNSEL FOR PLAINTIFF/APPELLANT:
Kenneth Bourque

James P. Doherty, III
Becker & Hebert, LLC
201 Rue Beauregard
Lafayette, LA 70508
(337) 233-1987
COUNSEL FOR DEFENDANT/APPELLEE:
Butch Bergeron
Bergeron Metal Buildings, L.L.C.

SAVOIE, Judge.

Plaintiff, Kenneth Bourque, appeals the trial court’s summary judgment

dismissal of his breach of contract claims against Butch Bergeron. For the following

reasons, we reverse the ruling of the trial court and remand the matter for further

proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On October 21, 2016, Bourque filed a Petition for Breach of Contract naming

Butch Bergeron as the defendant and seeking damages against him. Therein, he

alleged that Bergeron was doing business individually as “Bergeron’s Metal

Builders,” and that he contracted with Bergeron to build various metal buildings and

concrete slabs. According to Bourque’s petition, the slabs did not “conform with

the representations as to the quality of the workmanship made by the contractor,”

and, as a result of defective workmanship, Bourque had to expend funds to remediate

damages caused by Bergeron.

On July 10, 2020, Bergeron filed a Motion for Summary Judgment seeking

the dismissal of Bourque’s claims against him individually. According to Bergeron,

he was acting with Bourque in his capacity as the manager and sole member of

“Bergeron’s Metal Buildings, LLC,” a Louisiana limited liability company, and

therefore Bourque has no right of action or cause of action against him individually

in accordance with La.R.S. 12:320.

In support of his Motion for Summary Judgment, Bergeron submitted copies

of three proposals dated December 6, 2011. The proposals contain a typewritten

letterhead with a prominent logo stating “Bergeron’s Metal Builders” at the top in

the center of the page, as well as Butch Bergeron’s typewritten name and address in

smaller font to the left side of the page. The proposals reflect they were submitted

to Kenneth Bourque. They further contain Butch Bergeron’s signature next to the

line “Respectfully submitted by,” as well as the signature of Gloria Bourque,

indicating the acceptance of the proposal.

Bergeron also submitted copies of invoices dated January 31, 2012, and

February 31, 2012, as well as two invoices dated March 21, 2012. The invoices are

printed on the same letterhead as the proposals, which contain the logo for

“Bergeron’s Metal Builders” in a typewritten heading in the center, along with Butch

Bergeron’s name and address in smaller font to the left. They are addressed to

Kenneth Bourque, and further contain the signature of Gloria Bourque as the buyer.

In addition, Bergeron also submitted his deposition testimony wherein he

stated that he has done business through Bergeron’s Metal Builders, LLC since 2004,

and that the logo used on the proposals and invoices submitted to Bourque contained

a typographical error in that they state “Metal Builders” instead of “Metal Buildings.”

Bergeron also submitted information on file with the Louisiana Secretary of State

indicating that Bergeron’s Metal Buildings, LLC (“the LLC”) is in good standing,

has existed since August 2, 2004, and that Percy Paul Bergeron, Jr. is the registered

agent and sole member of the LLC.

Bergeron also submitted his own affidavit stating that his full name is Percy

Paul Bergeron, Jr., he is the registered agent and sole member of the LLC, he is in

the business of erecting metal buildings and has been since August 2, 2004, through

the LLC, his contractor license is in the name of the LLC, checks received from the

Bourques for payment of work were made payable to “Bergerons Metal Building”

and “Bergeron’s”, and the Bourques’ checks were deposited into a financial account

in the name of the LLC. Bergeron also submitted with his affidavit, a copy of the

LLC’s contractor license, copies of the Bourques’ checks, and copies of bank

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statements from a financial account in the name of “Bergerons Metal Buildings, LLC”

reflecting the deposit of the Bourques’ checks.

Thereafter, Bourque sought and was granted leave to file a First Amended

Petition for Breach of Contract, wherein he added Bergeron Metal Buildings, LLC

as an additional defendant. He further alleged that he contracted with Bergeron

individually and that Bergeron performed the work individually, but alternatively

sought relief against the LLC as well.

On August 31, 2020, Bourque filed an opposition to Bergeron’s motion for

summary judgment. He argued that summary judgment dismissal of his claims

against Bergeron individually was not appropriate because factual issues exist as to

whether he contracted with Bergeron individually or with the LLC, and whether

Bergeron, if acting as an agent for the LLC, failed to properly disclose his agency

relationship.

In support thereof, Bourque submitted his own affidavit stating that he

contacted Bergeron in 2012 to undertake construction work; he and his wife

discussed with Bergeron the scope of the work needed and that Bergeron agreed to

do the work; Bergeron provided three proposals, and the proposals stated Bergeron’s

name as well as “Bergeron’s Metal Buildings,” “which appeared to be Bergeron

‘doing business as’”; Bergeron did not indicate his business was an LLC, or discuss

the existence of an LLC; Bourque spoke with and hired Bergeron to do the work,

and he did not, to his knowledge, enter into a contract with the LLC; no one

represented to him that they were acting on behalf of the LLC; the work was

performed by Bergeron “and his crew;” and Bergeron submitted invoices that did

not reference an LLC.

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Bourque also submitted the affidavit of his wife, Gloria Bourque, in support

of his opposition. Therein, she stated that her husband “primarily handled the

discussions with the construction[,]” but that Bergeron prepared proposals that she

signed to indicate receipt thereof. Mrs. Bourque also stated that, when she spoke

with Bergeron, he never did anything to suggest that his business was an LLC, or

that Bergeron’s Metal Buildings, LLC existed. She further indicated that, to her

knowledge, her husband had hired Butch Bergeron to do the work.

On September 14, 2020, the trial court heard Bergeron’s motion and

ultimately rendered a summary judgment in his favor dismissing “the claims of

Kenneth Bourque against Butch Bergeron, individually and/or doing business as

Bergeron’s Metal Builders[.]” The judgment further stated that Bourque’s “claims

against Bergeron’s Metal Buildings, LLC are not dismissed and remain viable.”

Bourque appeals and asserts the following as assignments of error:

1. The [t]rial [c]ourt below committed reversible error in granting
summary judgment in favor of Defendant, Percy Paul “Butch”
Bergeron, Jr., and dismissing Plaintiff-Appellant’s claims against
him, at Plaintiff-Appellant’s costs.

2. The [t]rial [c]ourt below committed reversible error in finding that
there was no genuine issue as to material fact whether Percy Paul
“Butch” Bergeron, Jr. was individually liable.

STANDARD OF REVIEW

As recognized in Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d

880, 882-83 (footnote omitted),

A motion for summary judgment is a procedural device used
when there is no genuine issue of material fact for all or part of the relief
prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-363 p. 3 (La.
11/29/06), 950 So.2d 544, 546, see La. C.C.P. art. 966. A summary
judgment is reviewed on appeal de novo, with the appellate court using
the same criteria that govern the trial court’s determination of whether
summary judgment is appropriate; i.e. whether there is any genuine
issue of material fact, and whether the movant is entitled to judgment

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as a matter of law. Wright v. Louisiana Power & Light, 2006-1181 p.
17 (La. 3/9/07), 951 So.2d 1058, 1070; King v. Parish National Bank,
2004-0337 p. 7 (La. 10/19/04), 885 So.2d 540, 545; Jones v. Estate of
Santiago, 2003-1424 p. 5 (La. 4/14/04), 870 So.2d 1002, 1006.

“[A] motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue as to

material fact and that the mover is entitled to judgment as a matter of law.” La.Code

Civ.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if the
mover will not bear the burden of proof at trial on the issue that is before
the court on the motion for summary judgment, the mover’s burden on
the motion does not require him to negate all essential elements of the
adverse party’s claim, action, or defense, but rather to point out to the
court the absence of factual support for one or more elements essential
to the adverse party’s claim, action, or defense. The burden is on the
adverse party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(D)(1).

ANALYSIS

The trial court concluded that the evidence submitted in connection with

Bergeron’s motion for summary judgment established that Bourque was “dealing

with a company or an entity, not being Butch Bergeron[, individually,]” and it

dismissed Bourque’s claims against Bergeron in accordance with La.R.S. 12:1320,

which states:

A. The liability of members, managers, employees, or agents, as
such, of a limited liability company organized and existing under this
Chapter shall at all times be determined solely and exclusively by the
provisions of this Chapter.

B. Except as otherwise specifically set forth in this Chapter, no
member, manager, employee, or agent of a limited liability company is
liable in such capacity for a debt, obligation, or liability of the limited
liability company.

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C. A member, manager, employee, or agent of a limited liability
company is not a proper party to a proceeding by or against a limited
liability company, except when the object is to enforce such a person's
rights against or liability to the limited liability company.

D. Nothing in this Chapter shall be construed as being in
derogation of any rights which any person may by law have against a
member, manager, employee, or agent of a limited liability company
because of any fraud practiced upon him, because of any breach of
professional duty or other negligent or wrongful act by such person, or
in derogation of any right which the limited liability company may have
against any such person because of any fraud practiced upon it by him.

Louisiana Revised Statutes 12:1320 “describes limited liability as a general

rule for members of an LLC.” Ogea v. Merritt, 13-1085, p. 9, (La. 12/10/13), 130

So.3d 888, 896. This general rule “effectively operates as a presumption that the

members [of an LLC] are not personally responsible for the liabilities of the LLC

beyond the member’s capital contributions to the LLC.” Id. at 907.

While Bourque does not dispute on appeal that individual members of an LLC

are generally not personally liable for the debts of an LLC, he argues that the

evidence submitted in connection with Bergeron’s Motion for Summary Judgment,

at minimum, creates material factual issues as to whether Bergeron contracted with

Bourque in his individual capacity, rather than as a representative of an LLC, and/or

whether Bergeron sufficiently disclosed his representative status. Therefore,

according to Bourque, the limited liability generally afforded to individual members

of an LLC is not applicable here, and summary judgment dismissal of his claims

against Bergeron individually was in error.

Bourque notes the Ogea court’s recognition that “a member [of an LLC] can

be liable for ‘a breach of contract undertaken in his own right.’ Ogea, 130 So.3d at

904 (internal citations omitted). He further cites the following language from Ogea,

Id. at 905:

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“[I]n a small business setting . . . it is fairly common for shareholders
to act in representative capacities on behalf of their closely-held
corporations (as officers, agents or employees) without formally
disclosing to the third party that is this capacity in which they are acting.”
MORRIS & HOLMES, supra, § 33.04. Consequently, the individual is
considered “an undisclosed agent personally liable for the contracts that
he negotiates on his principal’s behalf.” Id.; see also Id., § 44.06
(reasoning the same rule should apply to members of an LLC). While
this situation directly implicates contract law, it is nevertheless an
example of acting “outside” the structure of an LLC.

As the court stated in George v. White, 12-101, pp. 12-13 (La.App. 5 Cir.

10/30/12), 101 So.3d 1036, 1043-44, when considering whether an individual

member of an LLC could be personally liable for losses sustained by the plaintiff:

Generally, an agent is held to have bound himself personally
when he enters into an agreement without disclosing the identity of his
principal. Frank’s Door & Bldg. Supply, Inc. v. Double H. Constr. Co.,
Inc., 459 So.2d 1273, 1275 (La.App. 1 Cir.1984). As the First Circuit
explained in J.T. Doiron, Inc. v. Lundin, 385 So.2d 450, 452-3 (La.App.
1 Cir.1980):

The general rule . . . places an affirmative duty on
the agent to tell those with whom he is dealing that he is
an agent acting for a certain principal. Absent disclosure
of a special status, the law presumes that a person is acting
in his individual capacity and holds him personally liable
for his actions. The person who claims he is acting as an
agent bears the burden of proof at trial to show this special
status.

What constitutes disclosure sufficient to put a third
party on notice of a principal/agent relationship has been
the turning point of some cases. (citations omitted).
Certainly, actual written or verbal communication by the
agent to the party with whom he is dealing is the best
method to disclose the agent’s status. The agent who
reveals his status and his principal’s identity in such a way
has performed the affirmative duty placed on him by the
law and has removed the presumption that he acted in his
individual capacity.

But when such a straightforward disclosure is not
employed, an agent still may be able to escape individual
liability by proving that sufficient indicia of the agency
relationship were known by the third party to put him on
notice of the principal/agent relationship. Express notice

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of the agent’s status and the principal’s identity is
unnecessary if facts and circumstances surrounding the
transaction, combined with the general knowledge that
persons in that type of business are usually acting as agents,
demonstrate affirmatively that the third person should be
charged with notice of the relationship. (citation omitted).

....

Whether or not an agency relationship has been disclosed must
be decided on a case-by-case basis. J.T. Doiron, supra, at 452.

As noted by this court in Allain v. Tripple B. Holding, LLC, 13-673, p. 7

(La.App. 3 Cir. 12/11/13), 128 So.3d 1278, 1284:

This principle is illustrated in Brown v. Ardoin, 95-256 (La.App.
3 Cir. 10/4/95), 663 So.2d 194, wherein a panel of this court addressed
the liability of corporate representatives who failed to disclose their
representative status. The court stated:

When a corporate officer or agent contracts on
behalf of the corporation, he has the duty to disclose his
representative status and the identity of his principal in
order to avoid personal liability under the contract.
However, the mere use of a tradename is not necessarily a
sufficient disclosure by the individual that he is in fact
contracting on behalf of a corporation so as to protect him
against personal liability. The facts and circumstances of
each case determine whether or not the individual
sufficiently disclosed that he was acting in a representative
capacity so as to alert the other contracting party that the
contract was with a corporation.

Id. at 198 (quoting Transport Refrigeration of La., Inc. v. D’Antoni, 281
So.2d 469, 471 (La.App. 4 Cir.1973)).

Here, there is no evidence indicating that Bergeron expressly told, or notified,

Bourque that he was acting on behalf of an LLC. The letterhead on which the

proposals and invoices were submitted do not, by themselves, conclusively establish

that Bourque contracted with a separate juridical entity, or that Bourque knew, or

should have known, Bergeron was otherwise acting in a representative capacity on

behalf of a juridical entity. The letterhead does not reflect LLC status of a business,

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much less the correct name of Bergeron’s business, and it also provides Bergeron’s

individual name and address. Further, the fact that the Bourques’ checks were

written to “Bergeron’s” and “Bergerons Metal Buildings,” does not, by itself,

conclusively establish that Bourque knew he was dealing with a juridical entity,

rather than simply with Mr. Bergeron individually, doing business under a

tradename.

While the evidence submitted in connection with Bergeron’s Motion for

Summary Judgment does not conclusively establish that Bergeron expressly told

Bourque he was acting in a representative capacity on behalf of a juridical entity, the

trial court may still weigh the facts and circumstances presented to determine

whether “sufficient indicia of the agency relationship were known by the third party

[Bourque] to put him on notice of the principal/agent relationship.” Allain, 128 So.3d

at 1284. However, any such weighing of evidence is not appropriate for summary

judgment. Rather, material issues of fact remain as to whether Bergeron adequately

disclosed his representative status and/or whether Bourque knew or should have

known he was doing business with an LLC. Therefore, we reverse the trial court’s

summary judgment dismissal of Bourque’s claims against Bergeron individually and

remand the matter for further proceedings.

DECREE

For the reasons stated above, the trial court’s summary judgment dismissal of

Kenneth Bourque’s claims against Butch Bergeron individually is hereby reversed,

and the matter is remanded to the trial court for further proceedings. Costs of this

appeal are assessed to Butch Bergeron.

REVERSED AND REMANDED.

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