Roberto Llopis, Dds, Wendy Llopis and Lafayette Comprehensive and Urgent Dental Care, LLC v. Kimberly Toce Walker

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-685

ROBERTO LLOPIS, DDS, WENDY LLOPIS, AND LAFAYETTE
COMPREHENSIVE AND URGENT DENTAL CARE, LLC

V.

KIMBERLY TOCE WALKER AND ALLYSON TOCE HOUSTON,
INDEPENDENT EXECUTORS OF THE SUCCESSION OF WALDEMAR
ORAN TOCE, JR.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2023-2897, DIVISION E
HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

**********

LEDRICKA J. THIERRY
JUDGE

**********

Court composed of Shannon J. Gremillion, Ledricka J. Thierry, and Guy E.
Bradberry, Judges.

AFFIRMED AS AMENDED.

Roshell Jones
Charlotte Bordenave
237 W. Main Street
New Iberia, LA 70560
(337) 255-8527
COUNSEL FOR PLAINTIFFS/APPELLANTS
Roberto Llopis, DDS, Wendy Llopis, and Lafayette Comprehensive and
Urgent Dental Care, LLC

Alan K. Breaud
Timothy W. Basden
Breaud & Meyers
Post Office Box 51365
Lafayette, LA 70505
(337) 266-2200
COUNSEL FOR DEFENDANTS/APPELLEES
Kimberly Toce Walker and Allyson Toce Houston, Independent
Executors of the Succession of Waldemar Oran Toce, Jr.

THIERRY, Judge.

Plaintiffs purchased a dental practice from Waldemar Oran Toce, Jr., DDS

and asserted that Dr. Toce intentionally damaged the goodwill of the practice

following the sale. The executors of Dr. Toce’s estate filed a motion for partial

summary judgment, claiming that (1) Plaintiffs’ claims were untimely under La.R.S.

23:921(B) and (2) judgment should be rendered against Plaintiffs due to their failure

to pay the promissory note for the practice. The trial court granted the executors’

motion for partial summary judgment, which Plaintiffs now appeal. For the reasons

that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 1, 2018, Waldemar Oran Toce, Jr., DDS (now deceased) and

his wife, Mary Hymel Toce, sold the assets of Dr. Toce’s dental practice to Roberto

L. Llopis, DDS, and his wife, Wendy Llopis. The promissory note specified a

purchase price of $200,000.00 plus interest and set forth monthly minimum

payments of $714.00, with the full balance due by October 31, 2033.

In consideration for the sale, Dr. Toce agreed not to compete with Dr. Llopis

in the practice of dentistry. Dr. Toce also agreed to “not own, manage, or be

employed by (whether as an employee or independent contractor) a competing

dental practice,” nor would he “recruit or employ (whether as an employee or

independent contractor) any of the dental practice’s current employees or

independent contractors.” Following the sale, Dr. Toce became an employee of Dr.

Llopis’s dental practice and continued seeing patients on a limited basis.

On July 16, 2020, Dr. Llopis hired another dentist, Dr. Melissa Dupree, DDS,

to work at his dental practice, Lafayette Comprehensive and Urgent Dental Care,

LLC (“LCUDC”). She worked there until March 16, 2022, when Dr. Llopis

terminated her employment.

On May 31, 2023, Dr. Llopis, his wife, and LCUDC (collectively, “the

Llopises”) filed a petition for damages against Kimberly Toce Walker and Allyson

Toce Houston, as executors of the Succession of Waldemar Oran Toce, Jr.

(collectively, “the Toces”). The Llopises allege that Dr. Toce agreed not to

intentionally damage the goodwill of the practice, but he did so anyway and thus

breached the November 1, 2018 sale. Specifically, the Llopises allege that between

March 16, 2022 (the date Dr. Llopis terminated Dr. Dupree) and July 7, 2022 (the

date of Dr. Toce’s death), Dr. Toce called clients of LCUDC and encouraged them

to leave LCUDC and instead treat with Dr. Dupree. They further allege:

Before March 16, 2022, Dupree and TOCE would meet periodically
and surreptitiously at Zea’s Restaurant with other current employees of
LCUDC to discuss and plan how Dupree would take over LCUDC from
ROBERTO LLOPIS, DDS. Part of this planning included having
Dupree print Open Dental reports that listed all of LCUDC’s patients
for the last three years that included patient addresses, birthdates, phone
numbers, email addresses and dates of last visit. This proprietary
information was used by Dr. Dupree and TOCE to open her new
practice and fill it with former LCUDC patients, in breach of the
contract executed by TOCE.

Ultimately, the Llopises claim that approximately 60% of their patients left

LCUDC due to Dr. Toce improperly directing patients to leave LCUDC. Because of

these actions, the Llopises allege that the Toces breached the November 1, 2018 sale,

which entitled them to stop paying the $200,000.00 note and recover the amounts

already paid towards the purchase price.

The Toces filed an answer and reconventional demand, asserting, in relevant

part, that the Llopises defaulted on the $200,000.00 promissory note and owe the

Toces the remaining amount due, plus attorney’s fees.

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Thereafter, the Toces filed a motion for partial summary judgment, asserting

that (1) the Llopises’ claims were untimely under La.R.S. 23:921(B) and (2)

judgment should be rendered against the Llopises for the delinquent amounts owed

pursuant to the promissory note. The motion was initially continued to allow for

more discovery and was ultimately heard nearly a year later. The trial court granted

the Toces’ motion on June 24, 2024, dismissing the Llopises’ claims against the

Toces, holding that $143,883.81 is the outstanding principal balance of the

promissory note and awarding attorney’s fees in an amount determined in a

subsequently presented fee affidavit.1

The Llopises now appeal the June 24, 2024 judgment relating to the Toces’

motion for partial summary judgment. The Toces filed an answer to the appeal,

asking for additional attorney’s fees for work done on appeal.

ASSIGNMENTS OF ERROR

The Llopises allege the following assignments of error on appeal:

1. The trial court committed manifest[] error when it held there was no
genuine issue of material fact that Appellants’ Petition for Damages
was untimely based on the two (2) year prescriptive period
concerning the sale of the goodwill of a business, as set forth in La.
R.S. 23:921 (B).

2. The trial court committed manifest[] error when it held there was no
genuine issue of material fact that Appellants defaulted on the
promissory note executed for the sale of the dental practice, awarded
a Judgment on the promissory note, and attorney fees.

LAW AND ANALYSIS

The standard of review of a judgment denying or granting a summary

judgment is de novo. Perry v. Rhodes, 20-109 (La.App. 3 Cir. 9/30/20), 304 So.3d

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The Toces’ attorney, Alan K. Breaud, thereafter filed an Affidavit of Fees, and the trial
court awarded attorney’s fees in the amount of $58,046.34 in a separate judgment signed on
November 20, 2024. The November 20, 2024 judgment is not at issue in this appeal.

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1036. Accordingly, we use the same criteria as the trial court in determining whether

summary judgment is appropriate. Id.

As set forth by La.Code Civ.P. art. 966(A)(2), “[t]he summary judgment

procedure is designed to secure the just, speedy, and inexpensive determination of

every action[.]” After an opportunity for adequate discovery has occurred, summary

judgment must be granted if the motion 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). If doubt exists regarding the

existence of a material issue of fact, the matter “must be resolved against granting

the motion and in favor of trial on the merits.” Suire v. Lafayette City-Parish Consol.

Gov’t, 04-1459, 04-1460, 04-1466, p. 11 (La. 4/12/05), 907 So.2d 37, 48.

The burden rests on the mover. La.Code Civ.P. art. 966(D)(1). If, however,

the mover will not bear the burden of proof at trial, then the mover is not required to

negate all essential elements of the adverse party’s claim. Id. Rather, the mover need

only “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.” Id. The adverse party, in

order to defeat the granting of summary judgment, must either prove the existence

of a genuine issue of material fact, or prove that the mover is not entitled to judgment

as a matter of law. Id.

Assignment of Error Number One

The issue in this assignment of error concerns the timeliness of Plaintiffs’

claims that Dr. Toce intentionally damaged the goodwill of the company. In the

November 1, 2018 sale and accompanying documents, Dr. Toce agreed not to

compete with Dr. Llopis in the practice of dentistry and further agreed not to recruit

any of the dental practice’s employees or independent contractors. One of the assets

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in the sale included the goodwill of the dental practice. As the sale documents

explain:

Both parties understand that this associated goodwill is based on the
relationships developed over time between W.O. Toce, Jr., D.D.S. and
his patients. Sellers will make all reasonable efforts to transfer the
existing goodwill of the practice to the Buyers and will take no
intentional actions that would damage his goodwill[.]

The selling of goodwill of a business is addressed in La.R.S. 23:921. In

general, the Louisiana Legislature renders null and void any contract or provision

“by which anyone is restrained from exercising a lawful profession, trade, or

business of any kind[.]” La.R.S. 23:921(A)(1). However, there are several

exceptions in which such a contract or provision is enforceable, including that under

La.R.S. 23:921(B):

Any person, including a corporation and the individual
shareholders of such corporation, who sells the goodwill of a business
may agree with the buyer that the seller or other interested party in the
transaction, will refrain from carrying on or engaging in a business
similar to the business being sold or from soliciting customers of the
business being sold within a specified parish or parishes, or
municipality or municipalities, or parts thereof, so long as the buyer, or
any person deriving title to the goodwill from him, carries on a like
business therein, not to exceed a period of two years from the date of
sale.

In other words, the selling of the goodwill of a business, as is the case here, is

an exception in which non-competition and/or non-solicitation provisions are

permitted. However, such a prohibition is limited to two years from the date of the

sale.

While the Llopises attempt to distinguish Dr. Toce’s alleged intentional

damage of goodwill from his alleged solicitation acts so as to render La.R.S. 23:921

inapplicable, neither the law nor evidence supports such an interpretation. Louisiana

Revised Statutes 23:921 explicitly encompasses goodwill. Dr. Toce’s alleged

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damage of goodwill occurred precisely through his solicitation of LCUDC’s

patients; the two cannot be separated. Therefore, we find that La.R.S. 23:921 applies.

Because of the two year limit set forth in La.R.S. 23:921(B), the Toces argue

that any non-competition or non-solicitation obligations imposed on Dr. Toce

expired two years after execution of the November 1, 2018 sale agreement, which

was November 1, 2020. Since the Llopises specifically allege in their petition that

Dr. Toce engaged in competition and/or solicitation activity from March 16, 2022

through July 7, 2022, the Toces reason that any non-competition and/or non-

solicitation claim is clearly expired.

However, the Llopises argue that, even if La.R.S. 23:921(B) does apply, there

are genuine issues of material fact. They claim that the timing of when Dr. Toce

“began to work with [Dr.] Dupree to undermine Appellants’ dental practice” is

uncertain. In fact, they suggest in their appellate brief that the meetings between Dr.

Toce and Dr. Dupree could have taken place as early as July 16, 2020 (and thus

within two years of the November 1, 2018 sale), when Dr. Dupree was first hired by

LCUDC.

We are not persuaded by the Llopises’ arguments. The Llopises presented no

evidence to support such a suggestion when opposing the motion for partial

summary judgment. Rather, the only evidence properly admitted and in the record

shows that the alleged breach occurred well after the two year limitation set forth in

La.R.S. 23:921(B). Even Dr. Llopis himself confirmed this in his deposition:

Q. How did [Dr. Toce] break the [November 1, 2018] sales agreement?

A. He contacted – after I terminated Dr. Dupree, he contacted a lot of
patients and he advised them that he was going to be with Dr. Dupree
and that he would appreciate if they would go over and switch dentists
over to her and him.

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Q. Okay. And that is why you felt that he violated the agreement and
you stopped paying him?

A. That’s a better word, “violated.”

Q. I’m sorry?

A. That’s a better work, break – “violated.” I couldn’t think of that
word. But, yes, I do feel that he violated it because part of that purchase
agreement, if you look into the sales agreement, was I purchased the
goodwill of the – of Toce’s relationship for 40 years with the patients
that I was granted his goodwill that he provided, that was part of the
purchase agreement. And to be honest with you, that was probably the
majority of the worth value of the practice.

Q. Okay. So his contact of patients, you said occurred after you
terminated Dr. Dupree?

A. That is affirmative.

Q. And I have the date that you terminated Dr. Dupree as March 16,
2022.

A. That is pretty accurate. I don’t have the termination letter with me,
but that sounds accurate.

Q. Okay. How long after you terminated Dr. Dupree did Dr. Toce first
contact any of your patients?

A. How long after I terminated her, or how long was he contacting
patients? I don’t understand.

Q. I’ll restate the question.

A. Okay.

Q. How long after you terminated Dr. Dupree did you first learn that
Dr. Toce contacted one of your patients?

A. Probably about two to three weeks after.

Q. And that contact was then from somewhere between March 16, 2022
and two or three weeks thereafter?

A. That’s affirmative.

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Later on, when asked about the timeframe of when Dr. Toce allegedly spoke

to patients with the intention of soliciting them, Dr. Llopis agreed it occurred from

March 16, 2022, until Dr. Toce’s death on July 7, 2022:

Q. There’s no other period of time that you got a phone call from a
patient that said that Dr. Toce wanted them to move their business or
suggested they move their business?

A. No, not before March 16th.

Thus, even Dr. Llopis himself testified that the alleged breach of contract did

not occur until March 16, 2022. The record also contains an affidavit from a former

patient of Dr. Toce and Dr. Llopis, who attested that Dr. Toce called her on March

28, 2022, telling her that he and Dr. Dupree would like to keep her as a patient.

Again, though, this evidence does not help the Llopises, as the phone call occurred

more than two years after the sale. Simply put, there is no evidence that shows any

alleged improper acts occurred prior to November 1, 2020. Therefore, the only result

we can reach is an affirmation of the trial court’s ruling.

Assignment of Error Number Two

In their second assignment of error, the Llopises claim it was manifest error

when the trial court held there was no genuine issue of material fact regarding

whether they defaulted on the $200,000.00 promissory note.

The contract provided that the Llopises, as Buyers, would make payments

towards the $200,000.00 purchase price as follows:

Mandatory payments shall in no event be less than $714 per month or
an amount equal to 2/7 of 7.5% of the monthly collections from the
dental practice business of Roberto Llopis, D.D.S., whichever amount

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is greater with a final payment of the full balance due, principal and
unpaid interest, on October 31, 2033.2

There is no dispute that the Llopises stopped payment on the $200,000.00 note

in approximately March 2023. The Llopises justified nonpayment due to Dr. Toce’s

alleged breach of contract.

However, in light of our finding above, the Llopises’ justification for

nonpayment fails. The Llopises did not offer an alternative explanation that would

justify nonpayment on the loan, nor did they attach any admissible evidence to their

opposition to the motion for partial summary judgment to create a genuine issue of

material fact.

What the evidence does show is that the parties executed a sale agreement and

that the Llopises stopped payment on the note, with their last payment in February

2023. The Toces presented an affidavit executed by Allyson Toce Houston, as

executor of Dr. Toce’s succession, who attested that all amounts owed on the note,

from March 1, 2023 through the present, are outstanding and owed. She attached an

accounting of payments to her affidavit, which listed all payments received on the

note and the remaining amount owed, including accrued interest, through April

2024. That amount is $143,883.81 and was the amount cast in favor of the Toces

and against the Llopises by the trial court. Therefore, we affirm the trial court’s

judgment in relation to the $143,883.81 balance on the promissory note.

The trial court also awarded attorney’s fees in the June 24, 2024 judgment,

with the amount to be determined in a later-filed fee affidavit. As we have previously

held, “[a]ttorney fees are allowable when provided for by statute or contract.”

2
The parties subsequently agreed to increase the monthly payments to $1,901.81 beginning
in February 2020.

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Romero v. LaGrange, 19-689, p. 11 (La.App. 3 Cir. 3/4/20), 297 So.3d 127, 135,

writ denied, 20-1435 (La. 2/9/21), 310 So.3d 178; see also Holt v. Ace Am. Ins. Co.,

14-380 (La.App. 3 Cir. 10/1/14), 149 So.3d 886.

The promissory note states that the Llopises agree to pay attorney’s fees

incurred in the collection of the note:

[I]n the event of any default in the payment of the principal sum
hereinabove mentioned at the respective times herein specified for the
payment therefor, the aforesaid Roberto Llopis, D.D.S. and Wendy
Llopis further agree to pay all reasonable attorney fees incurred in the
collection of this Note, or any portion thereof.

Given that the Llopises breached the contract by failing to pay the

contractually agreed-upon payments on the promissory note, the Llopises are

responsible for reasonable attorney’s fees. The trial court was not incorrect in

awarding such.3

Appellees’ Answer to the Appeal

The Toces answered the appeal, asserting they are entitled to additional

attorney’s fees for work done on appeal. “Generally, when an award for attorney’s

fees is granted at the trial level, additional attorney’s fees are proper for work done

on appeal. This is to keep the appellate judgment consistent with the underlying

judgment.” Wilczewski v. Brookshire Grocery Store, 08-718, p. 18 (La.App. 3 Cir.

1/28/09), 2 So.3d 1214, 1226, writ denied, 09-456 (La. 4/13/09), 5 So.3d 170; see

also Grand Pointe Homeowners Ass’n, Inc. v. Heymann, 20-36 (La.App. 3 Cir.

11/12/20), 307 So.3d 285.

We have reviewed the record and award $5,000.00 to the Toces for work done

on appeal.

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The amount of the attorney’s fees awarded is not at issue in this appeal, as the amount
awarded was set forth in a separate judgment not before us.

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DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. The

judgment is amended to include an award of attorney’s fees in the amount of

$5,000.00 to Appellees. Costs of this appeal are assessed against Appellants,

Roberto Llopis, DDS, Wendy Llopis, and Lafayette Comprehensive and Urgent

Dental Care, LLC.

AFFIRMED AS AMENDED.

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